https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9672

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT MACHAKOS** **AND** **THE JUDICIAL REVIEW DIVISION IN THE MATTER OF APPLICATION FOR LEVAR TO LODGE JUDICIAL REVIEW PROCEEDING FOR ORDERS OF CERTIORARI AND PROHIBIITON.** **AND IN THE MATTER OF ARREST AND PROSECUTION BY THE DCI MAVOKO POLICE STATION** **CASE NO. HDJ RE: 009 OF 2025** **JOSHUS ODHIAMBO OMOLO……………………………APPLICANT** **VERSUS** **DIRECTOR OF PUBLIC PROSECUTION……..1ST RESPONDENT** **PRINCIPAL MAGISTRATE MAVOKO** **LAW COURTS………………………………………..2ND RESPONDENT** **DIRECTOR OF CRIMINAL INVESTIGATIONS.3RD RESPONDENT** **ZACHARY WAMBUGU WANJOHI………….INTERESTED PARTY** **JUDGMENT** 1. The applicant, Joshua Odhiambo Omolo,filed a Notice of Motion at Machakos (Judicial Review Division) Case No. HCJR/E009/2025 seeking judicial review orders against the Director of Public Prosecutions, the Principal Magistrate at Mavoko Law Courts, and the Director of Criminal Investigations, with Zachary Wambugu Wanjohi named as the interested party. 2. The application is brought under Order 53 Rule 1 (1, 3 and 4) of the Civil Procedure Rules, the Law Reform Act (Cap 26), Article 47 and Article 165(6) of the Kenyan Constitution, Section 7 of the Fair Administrative Action Act, and the inherent jurisdiction of the High Court. 3. The applicant prays for an order of prohibition to restrain the Inspector General of Police, the Deputy Public Prosecutions, or any magistrate in Kenya from hearing, taking notes, or recording any evidence in Criminal Case Number Mavoko Senior Principal Magistrate Court MCCR/E331/2025, Republic versus Joshua Odhiambo Omolo and Another. 4. The grounds upon which the application is brought are that the applicant is an accused person in the mentioned criminal case and was arrested and taken to Mavoko Police Station. 5. Upon arrest, he explained that he was unwell and needed urgent medical attention. 6. He was presented before the second respondent on 28th April 2025 but did not take a plea because the court ordered that he be rushed to hospital for treatment. 7. His wife stood as surety for him and was advised to ensure his attendance on 5th May 2025, but he was unable to attend because he was seeking treatment at a hospital, so he informed his counsel to obtain another plea date. 8. He later visited Mama Lucy Hospital and was admitted to Kenyatta National Hospital on 10th May, discharged with a recommendation for weekly clinic attendance. 9. The applicant further states that the first interested party, who is the complainant in the criminal case, is well known to him. 10. On 21st May 2025, his wife, acting as surety, appeared in court and was taken into custody due to his non-attendance. 11. The applicant argues that the purpose of a surety is to guarantee an accused’s appearance, not to act as a means of coercion. 12. He relies on Article 27(1) of the Constitution (equality before the law), Article 50(2)(b) (right to a fair trial), Article 47 (right to fair administrative action), and Articles 22, 23, and 48 (access to justice and enforcement of the Bill of Rights). 13. His case is that he will not receive a fair trial and that the criminal justice system is being misused to manipulate him, and he seeks a stay of any warrant of arrest and prosecution pending the hearing of the proceedings. 14. In support of his arguments, the applicant cites several cases. 15. First, he relies on the English House of Lords decision in **Bennett v Horseferry Magistrates’ Court & another [1993] 3 All E.R. 138 (H.L.**), where the court confirmed that an abuse of process justifying the stay of a prosecution could arise where it would be impossible to give the accused a fair trial, or where it would amount to a misuse or manipulation of process because it offends the court's sense of justice and propriety to be asked to try the accused in the circumstances of the particular case. 16. Second, the applicant references the academic work of **Chris Corns, "Judicial Termination of Defective Criminal Prosecutions: Stay Applications" (1977) 16 University of Tasmania Law Review No. 1, page 76,** which classifies grounds for a stay as when continuation of proceedings would constitute an abuse of process; when any resultant trial would be unfair to the accused; or when continuation would tend to undermine the integrity of the criminal justice system. 17. Third, the applicant cites **Republic v Attorney General ex parte Kipgeno Arap Ngeny [2001] eKLR, High Court Civil Application Number 406 of 2001**, where the court held that before instituting criminal proceedings, there must exist material evidence on which the prosecution can say with certainty that they have a prosecutable case. 18. The court further held that although the state’s interest and constitutional and statutory powers to prosecute are recognised, the Director of Public Prosecutions must act with caution and ensure he does not put the freedoms and rights of the individual in jeopardy without lawful parameters. 19. The High Court will interfere with a criminal trial in the subordinate court if it is determined that the prosecution is an abuse of process, oppressive, or vexatious. 20. A prosecution that is oppressive and vexatious is an abuse of process, and where the material on which the prosecution is based is frivolous, it would be unfair to require an individual to undergo a criminal trial. 21. Such a prosecution would only embarrass the individual and put him to unnecessary expense and agony. 22. The court may issue a prohibition halting the prosecution if no offence is disclosed. It is an abuse of process to mount a criminal prosecution for extraneous purposes such as securing settlement of civil debts or settling personal differences, even if the complainant has a prima facie case. 23. A criminal prosecution will also be halted if the charge sheet does not disclose a criminal offence. 24. In deciding whether to commence or pursue a criminal prosecution, the DPP must consider the public interest, including whether the prosecution will enhance public confidence in the law, whether it is necessary at all, and whether the case can be resolved easily by civil process without putting the individual’s liberty at risk, since liberty is a valued right that should not be tested on flimsy grounds. 25. Fourth, the applicant cites **Republic v Commissioner of Police and another ex parte Michael Monari & another [2012] eKLR,** where the court held that the police have a duty to investigate any complaint made, and they would be failing in their constitutional mandate to detect and prevent crime if they did not. 26. The police only need to establish reasonable suspicion before preferring charges, and the rest is left to the trial court. 27. However, as long as the prosecution and those charged with making decisions to charge act in a reasonable manner, the High Court would be reluctant to intervene. 28. The predominant reason for the institution of the criminal case cannot therefore be said to have been the vindication of criminal justice if the prosecution acts unreasonably. 29. Fifth, the applicant cites **Republic v Principal Kadhi, Mombasa ex parte Alibhai Adamali Dar & 2 others; Murtaza Turabali Patel (Interested Party) [2021] eKLR,** where the court rendered itself that the order of prohibition issues where there are assumptions of unlawful jurisdiction or excess of jurisdiction. 30. It is an order from the High Court directed to an inferior tribunal or body, and its function is to prohibit or forbid encroachment into jurisdiction and further to prevent the implementation of orders issued when there is lack of jurisdiction. 31. Based on these legal provisions, constitutional guarantees, and the case law cited, the applicant prays that the Honourable Court issues orders for stay of any warrant of arrest and prosecution pending the hearing of these proceedings, and for the order of prohibition as prayed. 32. The Respondent filed a Replying Affidavit is sworn by Oliver C. Mwaura, an Advocate from the Office of the Director of Public Prosecution at Mavoko opposing the Applcant’s Judicial Review Application. 33. The State contends that the applicant’s application dated 16th June 2025 is bad in law, frivolous, unmeritorious, and a waste of the court’s time. 34. It is true that in the related criminal case E331/2025, the applicant has never taken a plea, despite being given time to seek medical treatment. 35. Since his release for treatment, the applicant has evaded the investigating officer and misled the court by claiming that the officer cannot be traced. 36. This "hide and seek" conduct led to the imprisonment of the applicant's surety. 37. The State clarifies that its intention has never been to jail the surety, but rather to seek justice for the complainant in the criminal case. 38. The applicant’s co-accused faithfully attends court, while the applicant continues to avoid appearance. 39. The right to a fair trial, which the applicant raises, also guarantees the same right to the complainant. 40. It is only fair and right that the applicant makes himself available in criminal case E331/2025. 41. The State has no objection to taking dates suitable for the applicant’s fitness to stand trial as its main concern is that the applicant is trying to avoid trial altogether. 42. The complainant deserves his day in court, as the case involves serious triable issues and the co-accused also needs the case to be concluded speedily. 43. The State tentatively prays that the court finds the applicant’s application unmeritorious and an abuse of the court process. 44. Joshua Odhiambo Omolo, the applicant in the Judicial Review Case No. HCJR/E009 of 2025 filed a response to the affidavit sworn by Oliver C. Mwaura, which he claims criticised him for being sick despite him having produced medical evidence. 45. He explains that he is seeking orders of Certiorari (to quash) and Prohibition (to restrain) against actions he argues were taken without jurisdiction, in breach of due process, and for improper purposes. 46. The criminal case against him (No. E331 of 2025) was initiated by the 1st Interested Party, but prior to his arraignment, no witness statements or evidentiary material were filed, violating his rights. 47. He notes that the complaint was lodged by an advocate for the 1st Respondent, not by the complainant personally, and that the investigation process was procedurally improper and biased. 48. He further alleges that investigators improperly shared his statement and documents with the 1st Interested Party, contrary to National Police Service Standing Orders requiring unbiased factual assessment before arrest. 49. The underlying dispute involves land parcels LR Nos. 12610/1/2/3/4/5 in Katani, Mavoko, Machakos County. 50. These land parcels are already subject to unresolved civil proceedings before the Environment and Land Court (ELC Case No. 140 of 2019), where status quo orders were issued on 31st January 2020. 51. The land is also the subject of Constitutional Petition No. 12 of 2018 at Machakos, which issued conservatory orders. 52. The 1st Interested Party was not a party to those ELC proceedings and has no documentary proof of ownership. 53. He argues the criminal process is being invoked irrationally and with ulterior motive, to pressure him in the pending civil land dispute. 54. The land issue was also under inquiry by the National Land Commission, which formed a task force via Gazette notice. 55. He contends that the respondents’ failure to consider ongoing civil and administrative processes while selectively using criminal law constitutes procedural impropriety, illegality, and abuse of discretion. 56. He asks the court to restrain the respondents from acting beyond their legal powers (ultra vires), as their actions undermine the rule of law. 57. He states that the respondents’ conduct violates the constitutional right to fair administrative action under Article 47 of the Kenyan Constitution. 58. The Applicant filed written submissions stating that he is challenging his arrest and prosecution in Mavoko Criminal Case No. E331 of 2025, which arose from a complaint lodged by the interested party, Zachary Wambugu Wanjohi. 59. The applicant argues that the respondents, the Director of Public Prosecutions, the Principal Magistrate at Mavoko Law Courts, and the Director of Criminal Investigations, have abused their power and discretion, and that before his arraignment, no witness statements or evidentiary material were provided to him, rendering the decision to charge him arbitrary. 60. The applicant was arraigned on 28th April 2025 but did not take a plea due to severe illness, was released on bail, later admitted to Kenyatta National Hospital, and because of his condition failed to attend court on 5th May and 21st May 2025; his wife, who stood as his surety, was arrested for failing to produce him in court on 21st May, which worsened his health. 61. The applicant seeks to quash the decision requiring him to appear to take plea and to prohibit further proceedings in the criminal case, contending that the respondents’ actions are unreasonable under the **Wednesbury test as explained in Republic v Public Procurement Administrative Review Board & 2 others Ex-Parte Pelt Security Services Limited [2018] eKLR,** where the court held that a decision must be objectively devoid of plausible justification or verging on absurdity to be vitiated, and that a decision failing to give proper weight to relevant factors may be challenged as unreasonable. 62. The applicant submits that the investigating officer never provided witness statements, that the police shared the applicant’s statement with the interested party in violation of National Police Service Standing Orders. 63. Further, that the dispute arises from land parcels subject to unresolved civil proceedings before the Environment and Land Court in ELC Case No. 140 of 2019 and Constitutional Petition No. 12 of 2018 at Machakos, where status quo and conservatory orders were issued. 64. The applicant further notes that the complainant did not personally record a statement but acted through an advocate, and that the respondents invoked the criminal process without resolving the underlying civil dispute. 65. He cited **Kanda v Government of Malaya (Lord Denning),** and asserted that the right to be heard includes knowing the case made against him and the evidence affecting him. 66. Relying on **Republic v Chief Magistrate’s Court Ex-parte Ganijee & Another (2002) 2 KLR,** where the High Court held that using criminal law to pursue a civil objective is an abuse of court process, and on the Court of Appeal in **Commissioner of Police & Others v Kenya Commercial Bank & Others Civil Appeal No. 56 of 2012 [2013] eKLR,** which stated that it is not in the public interest to use criminal justice as a pawn in civil disputes, the applicant argues that the respondents’ failure to consider ongoing civil processes constitutes procedural impropriety and illegality. 67. The applicant also invokes his right to a fair trial under Article 50 of the Constitution, as discussed in **Evans Odhiambo Kidero & 4 others v Ferdinand Ndungu Waititu & 4 others, SC Petition No 18 of 2014 as consolidated with Petition No 20 of 2014 [2014] eKLR,** where the Supreme Court affirmed that the right to a fair trial is non-derogable under Article 25(c). 68. The applicant submits that his rights under Articles 27 (equality), 29 (freedom and security), and 50 (fair hearing) have been or are about to be violated, and that under Articles 22, 23, 48, and 258 of the Constitution, he has direct access to court to enforce the Bill of Rights without necessarily requiring leave. 69. The applicant therefore prays that the court grants the orders sought, having demonstrated irrationality and procedural impropriety in the respondents’ actions. 70. The Respondents did not file any written submissions. 71. The issues for determination in this case are as follows; 72. *Whether the criminal proceedings against the applicant in Mavoko Senior Principal Magistrate Court Criminal Case Number MCCR/E331/2025 constitute an abuse of the court process;* 73. *Whether the applicant’s prosecution is actuated by ulterior motives, specifically to pressure the Applicant in an ongoing civil land dispute; and* 74. *Whether the orders of prohibition and certiorari sought by the applicant are merited.* 75. I have careful consideration of the applicant’s Notice of Motion, the supporting affidavit, the further affidavit, the written submissions, and the replying affidavit filed by the Respondent. 76. The applicant, Joshua Odhiambo Omolo, seeks judicial review orders to halt criminal proceedings instituted against him. 77. His argument is that the criminal case arises from a dispute over land parcels LR Nos. 12610/1/2/3/4/5 in Katani, Mavoko, which are already the subject of unresolved civil proceedings before the Environment and Land Court in ELC Case No. 140 of 2019 and Constitutional Petition No. 12 of 2018 at Machakos, where status quo and conservatory orders were issued. 78. He contends that the criminal process is being invoked irrationally and with an ulterior motive, to pressure him in the pending civil land dispute, and that no witness statements or evidentiary material were provided to him before his arraignment. 79. This court has the power and indeed the duty to bring to a halt criminal proceedings where the same are being brought for ulterior motives or for the achievement of some collateral purpose, notwithstanding the constitutional and legal powers conferred upon the Director of Public Prosecutions and the police. 80. 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 sense of fair play and decency, and where the proceedings are oppressive or vexatious. 81. The machinery of criminal justice is not to be allowed to become a pawn in personal civil feuds and individual vendetta. 82. The applicant has demonstrated that the underlying dispute is essentially civil in nature, concerning ownership of land that is already before the Environment and Land Court. 83. The law is clear on this point. 84. In **Republic vs. Chief Magistrate’s Court at Mombasa Ex Parte Ganijee & Another (supra)**, it was held that it is not the purpose of a criminal investigation or a criminal charge or prosecution to help individuals in the advancement or frustration of their civil cases, and that such action constitutes an abuse of the process of the court . 85. The court further stated that no matter how serious the criminal charges may be, they should not be allowed to stand if their predominant purpose is to further some other ulterior purpose, and that the sole purpose of criminal proceedings is to be impartially exercised in the interest of the general public, not for the advancement of a civil cause of one or both parties in a civil dispute. 86. Furthermore, the Director of Public Prosecutions, in exercising the powers conferred by Article 157(11) of the Constitution, 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. 87. Where the applicant demonstrates that the criminal proceedings that the police intend to carry out are an abuse of process, the court will not hesitate in putting a halt to such proceedings. 88. The court also noted that the mere fact that intended criminal proceedings are in all likelihood going to fail is not a ground for halting those proceedings by way of judicial review, as judicial review is concerned not with the merits but with the decision-making process. 89. However, if the applicant demonstrates an abuse of process, the court will intervene . 90. In this case, the applicant has made a clear showing that the criminal process is being misused. 91. The existence of ongoing civil proceedings concerning the same land, the issuance of status quo orders by the Environment and Land Court, the alleged failure to provide witness statements before arraignment, and the claim that the complaint was lodged through an advocate rather than the complainant personally, all point to a process that is tainted with procedural impropriety. 92. The applicant’s contention that the investigators improperly shared his statement with the Interested Party, contrary to National Police Service Standing Orders, further supports the conclusion that the prosecution is not being conducted with the required impartiality and fairness. 93. The applicant’s non-attendance in court due to his medical condition, which he has supported with evidence including his admission to Kenyatta National Hospital and a recommendation for weekly clinic attendance, does not, in the circumstances of this case, warrant the continuation of a prosecution that appears to be an abuse of process. 94. While the right to a fair trial is guaranteed to both the accused and the complainant, that right cannot be used to shield a prosecution that has been instituted for an ulterior purpose. 95. Consequently, this court finds that the criminal proceedings in Mavoko Senior Principal Magistrate Court Criminal Case Number MCCR/E331/2025, Republic versus Joshua Odhiambo Omolo and Another, amount to an abuse of the court process. 96. The predominant purpose of the prosecution is not to vindicate the criminal law in the public interest, but to advance an ulterior motive, namely to bring pressure upon the applicant in a pending civil land dispute. 97. The application is therefore allowed as follows; 98. **An order of prohibition is hereby issued directed to the Principal Magistrate at Mavoko Law Courts, the Director of Public Prosecutions, and the Director of Criminal Investigations, prohibiting them from hearing, taking notes, recording any evidence, or continuing with the prosecution of the applicant in Criminal Case Number Mavoko Senior Principal Magistrate Court MCCR/E331/2025.** 99. **An order of certiorari is also issued to quash any proceedings already conducted in the said criminal case in respect of the Applicant.** 100. **Each party shall bear their own costs, given the nature of the dispute.** 101. Orders to issue accordingly. Dated, Signed and Delivered online via Microsoft Teams at Nairobi this 25th day of June, 2026. 1. **N. ONGERI** **JUDGE** In the presence of: No appearance for the Applicant No appearance for the 1st Respondent No appearance for the 2nd Respondent No appearance for the 3rd Interested Party Chrispin – Court Assistant