https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8471

Jabavu Village Ltd & 5 others v Directorate of Criminal Investigations & 2 others (Petition E003 of 2026) [2026] KEHC 8471 (KLR) (17 June 2026) (Judgment) Neutral citation: [2026] KEHC 8471 (KLR) Republic of Kenya In the High Court at Kibera Petition E003 of 2026 DR Kavedza, J June 17, 2026 IN THE MATTER OF ARTICLES 2(1) & (2), 10(1), 19, 20, 22, 23(3), 29, 157(11), 165, 258(1) & 259(1) AND IN THE MATTER OF THE CONSTITUTION OF KENYA (PROTECTION OF RIGHTS AND FUNDAMENTAL FREEDOMS) PRACTICE AND PROCEDURE RULES, 2013 Between Jabavu Village Limited 1st Petitioner Hasscon Pharmaceuticals Limited 2nd Petitioner Abdulkadir Hussein 3rd Petitioner Farah Farah 4th Petitioner Abdio Marjama 5th Petitioner Ahmedislam Salim 6th Petitioner and Directorate Of Criminal Investigations 1st Respondent Inspector General National Police Service 2nd Respondent Director of Public Prosecutions 3rd Respondent Judgment 1.The Petitioners moved this Court by a Petition dated 9th February 2026 seeking, inter alia, a declaration that the summons, investigations, intended arrest and prosecution arising from transactions between the Petitioners and Credit Bank Plc under the Charge Instrument dated 15th September 2020 constitute an abuse of process and are therefore unlawful. They also seek an order of prohibition restraining the Respondents from investigating, questioning, arresting, charging, or prosecuting them in relation to the said transactions, together with costs and interest. 2.The Petition is supported by the grounds set out therein and the affidavit sworn by the Petitioner on the same date. 3.The Respondents opposed the Petition through a Replying Affidavit sworn on 26th February 2026 and Grounds of Opposition dated the same day. 4.Before considering the issues falling for determination, it is necessary to set out, in brief, the factual background giving rise to the present dispute. The facts, as disclosed in the pleadings and affidavits filed by the parties, are summarised below. Petitioner’s Case 5.The Petitioners’ case is that the 1st and 2nd Petitioners obtained financial facilities from Credit Bank Plc in the sum of KES. 1,200,000,000.00 in or about the year 2021. The facilities were secured by a Legal Charge dated 15th September 2020 and registered on 12th July 2021 over the property known as NAIROBI/BLOCK 31/219, registered in the name of One Upperhill Towers Limited, the Chargor. The rights and obligations of the parties were governed by the Charge instrument, the Letters of Offer, and the provisions of the Land Act, 2012. 6.Subsequently, disputes arose following the Bank’s attempt to exercise its statutory power of sale over the charged property. This led to the institution of Nairobi HCCOMM E427 of 2023, Jabavu Village Limited vs Credit Bank Limited & Others, in which interim injunctive orders were issued restraining the intended sale. The said injunctive orders were later discharged on 20th January 2025, and the suit was eventually struck out for want of capacity on the part of the Plaintiff. 7.Thereafter, the dispute concerning the Bank’s intended realization of the security continued in Milimani HCCOMM E053 of 2025, One Upperhill Towers Limited vs Credit Bank Limited & Others, as well as in the Court of Appeal Civil Appeal No. E342 of 2025, wherein the Appellant challenged an interlocutory ruling arising from the proceedings in HCCOMM E053 of 2025. Accordingly, the dispute between the parties concerning the charged property and the Bank’s exercise of its statutory remedies remains the subject of active civil and commercial proceedings before competent courts. 8.However, despite the pendency of the aforesaid civil proceedings, the 1st Respondent, by a letter dated 2nd February 2026, Ref: DCI/BFI/SEC/4/4/VOL.413/153, summoned the directors of the 1st and 2nd Petitioners to appear before the Directorate of Criminal Investigations on allegations including obtaining credit by false pretences, conspiracy to defraud, and money laundering. 9.The Petitioners contend that the impugned investigations do not serve any legitimate criminal justice purpose but are intended to exert undue pressure upon them in the context of an ongoing commercial dispute. They assert that the criminal process has been invoked for collateral purposes, particularly to intimidate them and compel settlement of a civil dispute, thereby constituting an abuse of the criminal justice system. 10.Consequently, the Petitioners maintain that the threatened investigations, arrest, and prosecution violate their constitutional rights and amount to an abuse of legal process. They therefore seek orders prohibiting the Respondents from investigating, arresting, charging, or prosecuting them over matters arising from the said commercial transaction. Respondents’ Case 11.The Respondents’ case is that on 18th November 2025, the Banking Fraud Investigation Unit received a formal complaint from Credit Bank PLC alleging the commission of various economic crimes in relation to credit facilities amounting to KES 1.2 billion advanced to the 1st and 2nd Petitioners and secured by property known as Nairobi/Block 31/219. Upon receipt of the complaint, the Banking Fraud Investigation Unit opened Inquiry File No. BFLU 697 of 2025 and commenced investigations. 12.The Respondents state that the complaint alleged offences, including obtaining credit by false pretences, conspiracy to defraud, forgery, money laundering, and organized criminal activity arising from the said facilities. They further contend that preliminary investigations revealed material discrepancies in documents presented to the Bank as collateral security, thereby raising reasonable suspicion of the commission of criminal offences. 13.According to the Respondents, the investigations are ongoing, and no decision has been made to arrest or charge any of the Petitioners. The purpose of the summons issued to the Petitioners was to record statements and obtain clarification regarding matters under investigation. Upon completion of investigations, the inquiry file is to be forwarded to the Director of Public Prosecutions for independent review and determination on whether any prosecution should be instituted. 14.The Respondents further state that the investigations concern allegations relating to documents used as collateral security, the manner in which certain assets were acquired or transferred, changes in directorships, financial restructuring, and other matters requiring forensic examination. They averred that inquiries were being undertaken to establish the authenticity of collateral documents and to investigate the circumstances surrounding the credit facilities and related transactions. 15.The Respondents acknowledged the existence of Milimani HCCOMM E053 of 2025 and other civil proceedings involving the parties. However, they contend that the civil proceedings were disclosed during investigations and that the existence of those proceedings has not halted the ongoing criminal investigations. 16.At the close of the respective parties’ cases, the court directed the parties to file written submissions. Both the Petitioner and the Respondents have filed their respective submissions, both dated 18th May 2026. Analysis And Determination. 17.Having considered the petition, the responses, and the arguments for and against the petition, the only issue for determination is:i.Whether the investigations commenced by the Respondents into the complaint lodged by Credit Bank PLC and any consequent prosecution amount to an abuse of the criminal justice process, warranting the intervention of this Court. 18.At the outset, Article 157(6) of the Constitution of Kenya, 2010 (hereafter “the Constitution”) vests in the Director of Public Prosecutions (DPP) the State power to institute and undertake criminal proceedings against any person before any court, other than a court martial, in respect of any offence alleged to have been committed. This constitutional mandate is to be exercised independently, impartially, and free from the direction, control, or influence of any person or authority. 19.On the other hand, one of the functions of the National Police Service is to investigate crimes, which is expressly provided under Section 24(e) of the National Police Service Act. More specifically, Section 28 of the said Act establishes the Directorate of Criminal Investigations (DCI) while Section 35 empowers the Directorate to, among other functions, investigate crimes and collect criminal intelligence. 20.Additionally, as rightly submitted by the Respondent, Section 52 of the National Police Service Act also empowers police to summon persons believed to have information relevant to investigations. In other words, the National Police Service has the power to commence investigations into a suspected crime. 21.It is in the exercise of these investigative powers that the 1st Respondent issued a letter Ref: DCI/BFI/SEC/4/4/VOL.413/153 to the directors of the 1st Petitioner, summoning its directors as well as the directors of the 2nd Petitioner on allegations of obtaining credit by false pretence, conspiracy to defraud, money laundering, among other alleged offenses. The complaint that triggered these summons was instigated by Credit Bank Limited, the Chargee. 22.The petitioners have argued that the summoning, criminal investigations, and interrogation by the 1st Respondent from the commercial transaction between the 1st and 2nd Petitioners on the one hand, and the Complainant (Credit Bank PLC) on the other hand, constitutes an abuse of the criminal justice system and is an affront to the administration of justice. According to the petitioners, the involvement of the police in a purely civil and commercial dispute is only meant to intimidate and exert undue pressure on the Petitioners to settle a civil dispute. 23.Conversely, the Respondents have argued that criminal investigations are independent public processes concerned with punishing criminal fraud in commercial transactions and that the enforcement of penal laws is not contingent upon, nor subordinate to, parallel civil litigation, and in this case, it is not demonstrated how criminal investigations will circumvent the conclusion of the civil proceedings. 24.The question that begs, therefore, is whether the Respondents’ decision to commence investigations and to summon the directors of the 1st and 2nd Petitioners was an abuse of investigative and/or prosecutorial powers. 25.While I acknowledge that the DCI and DPP indeed have the independent mandate to investigate crimes and to institute criminal proceedings against an individual, respectively, this power ought to be exercised in a manner that serves to meet the ends of justice. 26.The dispute between the Petitioner and Credit Bank Limited arose when the Bank advanced financial facilities to the 1st and 2nd Petitioners to the tune of KES. 1, 200, 000, 000.00. The loan was secured by a Legal Charge dated 15th September 2020 and registered on 12th July 2021 over the property known as NAIROBI/BLOCK 31/219, in the name of One Upperhill Towers Limited, the Chargor. 27.Following an alleged default in repayment sometime in 2023, the Bank attempted to exercise its statutory power of sale over the charged property, which triggered various civil and commercial proceedings challenging the intended realization of the security. Particularly, there was a case of HCCOMM E427 of 2023 Jabavu Village Limited vs Credit Bank Limited & others wherein injunctive orders were issued by Justice Mabeya against the sale by auction of the charged property. The injunctive orders were, however, discharged on 20th January 2025, and subsequently the said suit was struck out by the Court on account of lack of capacity by the Plaintiff therein, Jabavu Village Limited, to commence the said proceedings. 28.Presently, the Bank’s exercise of statutory power of sale is the subject of active proceedings in Milimani HCCOMM E053 of 2025, One Upperhill Towers Limited vs Credit Bank Limited & others, as well as Court of Appeal Civil Appeal No. E342 of 2025 One Upperhill Towers Limited vs Credit Bank Limited & others, wherein the Appellant is challenging an interlocutory ruling delivered by Justice Mulwa in HCCOMM E053 of 2025. 29.By the very nature of this transaction, the parties’ relationship was governed by contractual obligations freely undertaken, with rights and remedies arising from performance or breach thereof. In fact, the Bank had indeed sought to exercise its right of statutory sale, which culminated in the civil disputes that I have highlighted above. 30.In my view, questions relating to default in repayment of a loan facility and the subsequent exercise of the statutory power of sale to recover the loan arrears are matters that ordinarily fall for determination within the civil jurisdiction, unless clear evidence is demonstrated that the conduct complained of transcends a mere breach of contract and discloses a criminal offence. 31.The question that I wish to pose at this juncture is this: was it proper, in the circumstances, for the Respondents to commence criminal investigations and potential prosecution against the Petitioners in a bid to enforce the rights of the complainant bank under the Legal Charge? 32.The Respondents have attempted to justify the impugned investigations through their Replying Affidavit. In the said Affidavit sworn by the Investigating Officer from the Banking Fraud Investigation Unit, she deponed that upon receipt of the Complaint by Credit Bank PLC, she opened an inquiry file and commenced investigations. The preliminary inquiries unearthed evidence that lends credence to the criminal complaint by revealing material discrepancies in the documentation presented at the bank as collateral security, raising reasonable suspicion of possible offences, including:i.Forgery Contrary to section 345 as read with section 349 of the Penal Code,ii.Obtaining Credit by false pretences contrary to section 316(a), conspiracy to defraud contrary to section 317, both of the Penal Code, andiii.Money Laundering Contrary to Section 3 of the Proceeds of Crime and Anti-Money Laundering Act. 33.Aside from merely stating that preliminary investigations revealed discrepancies in the documentation presented to the Bank, the Respondents have not demonstrated the nature of those discrepancies, even at a prima facie level. 34.Further, while the Respondents have listed various offences allegedly under investigation, namely forgery, obtaining credit by false pretences, conspiracy to defraud, and money laundering, they have not disclosed any factual basis linking the Petitioners to any of the said offences. The offences are merely listed without any material whatsoever, however slight, to demonstrate how they arise from the facts under investigation. 35.What is even more perplexing is the Respondents’ assertion that they are investigating discrepancies in the documentation presented to the Bank as collateral security, yet the validity of the collateral itself is not in dispute. The Petitioners have not challenged the validity of the charge instrument, nor is it disputed that a proper legal charge was executed and registered over the suit property. Equally, there is no contest regarding the Bank’s entitlement, in principle, to exercise its statutory power of sale. Having had occasion to peruse the pleadings in HCCOMM E053 of 2025 annexed to the Petitioners’ Supporting Affidavit, I note that the dispute therein does not concern the authenticity, validity, or propriety of the charge instrument or the registered collateral. Rather, the dispute is confined to the procedure adopted by Credit Bank PLC in its attempt to exercise the statutory power of sale. 36.This Court is therefore left wondering what specific discrepancy the Respondents are investigating and how such a discrepancy relates to the offences cited. In the absence of any demonstration, even at the most basic level, of the alleged discrepancies and their nexus to the offences under investigation, this Court is left with only one conclusion: that the investigations, and any intended prosecution founded thereon, were initiated for an ulterior purpose, to intimidate the Petitioners and exert undue pressure upon them in the context of an otherwise civil dispute. The Respondents have therefore failed to establish any sufficient basis to justify the impugned investigations and any consequential prosecution. 37.In the case of Peter Macharia Ruchachu v Director of Public Prosecution & another [2014] eKLR, the criminal case against the applicant stemmed from a dispute between him and the complainant in the criminal trial over the performance of a contract. One of the issues for determination was whether a dispute over the performance of a contract could form a basis to prosecute one of the parties to the dispute. Ngaah J held as follows: 38.At the risk of repetition, the fact that there existed a Legal Charge executed between the relevant parties in the current dispute is uncontested. The Respondents in their Response have also acknowledged the existence of HCCOMM E053 of 2025, as the same was disclosed during investigations. However, the Respondents have relied on Section 193A of the Criminal Procedure Code (CPC) and argued that the section explicitly provides that the existence of civil proceedings is not a ground to stay, prohibit, or delay concurrent criminal investigations or prosecution, as this does not in any way interfere with the court’s jurisdiction and powers to determine the civil suit before it. 39.Section 193A of the CPC provides;“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.” 40.While the Respondents’ position is not by any means misguided, the Court of Appeal in Commissioner of Police & Director of Criminal Investigation Department & another v Kenya Commercial Bank Ltd & 4 others [2013]KECA182(KLR) was confronted by a similar question on the extent of the provisions in Section 193A of the CPC and held as follows;“While the law (Section 193A of the Criminal Procedure Code) allows the concurrent litigation of civil and criminal proceedings arising from the same issues, and while it is the prerogative of the police to investigate crime, we reiterate that that power must be exercised responsibly, in accordance with the laws of the land and in good faith.What is it that the company was not able to do to prove its claim against the bank in the previous and present civil cases that must be done through the institution of criminal proceedings?It is not in the public interest or in the interest of the administration of justice to use criminal justice process as a pawn in civil disputes.It is unconscionable and a travesty of justice for the police to be involved in the settlement of what is purely a civil dispute being litigated in court.This is a case more suitable for determination in the civil court where it has been since 1992, than in a criminal court.Indeed, the civil process has its own mechanisms of obtaining the information now being sought through the challenged criminal investigations.We have no doubt in our minds that the belated involvement of the police in this purely civil dispute is an abuse of their power.The police should direct their energies and resources to prevention of crime which we all know is rampant in this country and is about to get out of control.” 41.In light of the foregoing, I am persuaded that the nature of the present dispute falls squarely within the category of matters contemplated by the Court of Appeal in the above decision. The dispute arises from a contractual relationship and is amenable to resolution through the civil process. In the circumstances, it was neither necessary nor proper to invoke the criminal justice machinery where the matters in contention could well be settled through civil proceedings. 42.I dare say that it is not the purpose of a criminal investigation or a criminal charge or prosecution to help individuals in the advancement of their frustrations in their civil cases. This is an abuse of the process of the court and an abuse of the powers conferred upon the Respondents in investigations and prosecutions. 43.However serious the criminal charges may appear, they cannot be permitted to stand where it is evident that their predominant objective is to advance an ulterior purpose. Criminal proceedings are not intended to be used as a tool for the enforcement or advancement of a civil claim by either party to a dispute, but must be undertaken impartially and solely in the wider interest of the administration of justice and the public at large. 44.Taking into account the totality of the foregoing analysis, this Court is satisfied that the decision to commence investigations against the Petitioners amounted to an abuse of the Respondent’s prosecutorial powers. 45.What orders, then, are appropriate for issuance by this Court in the circumstances of this case? 46.In the case of Kuria & 3 Others v Attorney General [2002] 2 KLR 69, the court, while addressing similar issues as in the instant case, held thus in terms of the orders to issue:“The Court has power and indeed the duty to prohibit the continuation of the criminal prosecution if extraneous matters divorced from the goals of justice guide their instigation. It is a duty of the court to ensure that its process does not degenerate into tools for personal score-settling or vilification on issues not pertaining to that which the system was even formed to perform...A stay (by an order of prohibition) should be granted where compelling an accused to stand trial would violate the fundamental principles of justice which underlie the society’s senses of fair play and decency and/or where the proceedings are oppressive or vexatious…The machinery of criminal justice is not to be allowed to become a pawn in personal civil feuds and individual vendetta.........The invocation of the law, by whichever party in unsuitable circumstances or for the wrong ends must be stopped, as in these instances, the goals for their utilisation is far from that which the courts indeed the entire system is constitutionally mandated to administer...In the instant case, criminal prosecution is alleged to be tainted with ulterior motives, namely to bear pressure on the applicants in order to settle the civil dispute”. 47.Accordingly, and guided by the foregoing analysis as well as the holding in Kuria & 3 Others v Attorney General (supra), I am persuaded that the continued investigations and potential prosecution of the Petitioners would amount to an abuse of the criminal justice process. 48.As such, I am inclined to issue an order of prohibition restraining the Respondent from continuing with further investigations. Final Orders 49.Therefore, and for the reasons set out hereinabove, this Court makes the following orders:I.A declaration is hereby issued that the summoning, investigations, and any attempted arrest and subsequent prosecution of the Petitioners over questions arising from the commercial transactions between the Petitioners and Credit Bank Plc, the Chargee in the Charge Instrument dated 15th September 2020, constitute abuse of the legal process and is therefore null and void.II.An order of prohibition is hereby issued restraining the Respondents from investigating, interrogating or questioning, arresting, arraigning in court, and charging the Petitioners before any court of law over questions arising from the commercial transactions between the Petitioners and Credit Bank Plc, the Chargee in the Charge Instrument dated 15th September 2020.III.Each party shall bear its own costs. Orders accordingly. JUDGEMENT DATED AND DELIVERED VIRTUALLY THIS 17TH DAY OF JUNE 2026D. KAVEDZAJUDGEIn the presence of:Korir h/b for Kiprop for the PetitionersMwandawiro for the RespondentBury Court Assistant.