https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9968

Gabre v National Police Service & 2 others (Judicial Review E146 of 2025) [2026] KEHC 9968 (KLR) (Judicial Review) (2 July 2026) (Judgment) Neutral citation: [2026] KEHC 9968 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Law Courts) Judicial Review Judicial Review E146 of 2025 TW Ouya, J July 2, 2026 Between Juma Yayo Gabre Applicant and The National Police Service 1st Respondent The Inspector General of the National Police Service 2nd Respondent The Hon Attorney General 3rd Respondent Judgment 1.Vide leave of court granted on 4th June 2025, the Exparte applicant herein filed the substantive Notice of Motion dated 12th June 2025 seeking judicial review orders of:a.Declaration that the National Police Service and the Inspector General of the National Police Service violated the Applicant's right of fair administrative action and to a fair hearing by failing and/or refusing to grant the Applicant a chance to fair hearing given that the reason for them arresting him is due to a live matter pending in court.b.Declaration of mandamus to compel the Respondents to consider that the matter in which they are threatening to continue arresting the applicant on is a live matter and is yet to be decided by a court of law.c.An order of prohibition restraining the National Police Service and the Inspector-General of the National Police Service from intimidating, harassing, threatening to arrest, or arresting the Applicant prior to considering that the reason for arresting the applicant is a live matter before a court of justice.d.That the leave so granted operates as a stay of any decision of the National Police 2.The Notice of Motion is supported by a statutory statement and supporting affidavit sworn by the Applicant Juma Yayo Gabre on 12th June, 2025, annexing documents in support of the orders. 3.The Applicants case according to the affidavit presented in court is that on 19th May 2025, he was arrested by five police officers at Sosiani Estate, Embakasi, Kayole East in connection to a land dispute currently pending at Milimani law courts case number 341 of 2021 (MC ELC 341 of 2021.) 4.He alleges despite his pleas that the matter was ongoing in court; the officers ignored him and took him to the Nairobi DCI offices. 5.His fingerprints were taken and he was informed that he will be presented before court for plea taking. He was further denied cash bail by the arresting officer Susan Wambugu. 6.Despite his explanation to the said Officer of the 1st Respondent, the officers refused to allow him time to obtain necessary information and documentation relevant to the live matter in court. 7.Further, the said Officers of the 1st Respondent failed to explain the reason for the Applicants arrest on the said 19th May. 2025. 8.On 20th May, 2025 the Applicant asserts that he was summoned by one Kelvin Kithinji, the Investigating Officer, Capitol Hill Police station who told him to either elect to come out on cash bail or on bond. 9.In addition, the Applicant, claims that the said Officers of the 1st Respondent have personalized the issues herein, and are now irregularly acting on the whims and directions of persons unknown to him, instead of following procedure and protocol. 10.In response, the Respondent vide Affidavit sworn on its behalf by CI SUSAN WAMBUGU on 23rd October 2025 avers that a directive was given to the Director DCI for commencement of investigations for malicious damage to property and forcible Detainer contrary to section 339(1) and 9 (1) of the penal code respectively by one Patson Patrick Kariuki Njagi. 11.That Patson Patrick Kariuki Njagi alleged that he owned a parcel of land IR NO 153817; LR 15400/497 with an unfinished maisonette located in Sossian, Kayole Sub-County, Nairobi County which was the subject of malicious damage. The ownership of the land was confirmed by the Ministry of Lands 12.That the Applicant herein was summoned to DCI Nairobi area for further investigation but declined to honor summons and instead he continued to undertake constructions with excavations and excavators where he was supervising workers. 13.That on the 19th May 2025, the applicant was arrested and escorted to DCI Nairobi area for further investigation and processing but declined to disclose the ownership of the properly despite being given a chance to do so. He was placed in custody at capitol Hill Police Station vide 0B 65/19/05/2025 and the investigation team processed the applicant for court. 14.That the office of the Director of Public Prosecutions advised the investigation team to issue the Applicant with cash bail after having perused the file for approval of charges of which the applicant declined to sign the free bond together with the proposed cash bail as advised by the prosecution. 15.That Applicant was informed of the allegations against him during the arrest and went ahead to state verbally the parcel of land LR No. 15400/497 belongs to a senior police officer in the name of Leleruk but did not provide any supporting documents. 16.That the police investigation file inquiry was forwarded to ODPP for further action 17.The Respondent avers that after the arrest and release of the Applicant, Patson Patrick Kariuki Njagi filed a civil suit MCELC 341 of 2025 that is ongoing on Milimani courts 18.That the Applicant allegations of harassment are baseless based on the fact the he was given a chance to present himself before DCI Offices and further to provide any documents of ownership but declined. 19.The Respondent avers that at all material times, she has acted in strict compliance with the law and her statutory duties as an investigator. The actions taken were procedural. lawful, and based on evidence and reasonable suspicion gathered during the investigation. 20.That the Applicant has not demonstrated that the Respondent acted outside her legal mandate, With malice, or in violation of the Applicant’s constitutional rights. 21.That the Applicant's attempt to stop lawful investigations through judicial review is premature. Unmerited, and amounts to an abuse of the court process. as it seeks to the constitutional and statutory mandate of the National Police Service to investigate crime. 22.That unless this Honourable Court finds otherwise, the Respondent believes the Applicant's application is without merit and should be dismissed with costs. 23.The 3rd Respondent filed grounds of opposition deposing that the Application herein is unmerited and therefore an abuse of the due process of the Court and is intended to curtail the statutory obligations and duties of the 2nd and 3rd Respondent herein. 24.It is contended that the application is frivolous, vexatious and an abuse of court process since it does not disclose any single act of illegality on the part of the 2nd and 3rd Respondents or how they acted outside their mandate as provided in law. 25.It is argued that the orders sought in the application if granted, will undermine the investigatory functions of the 2nd and 3rd Respondents provided for under Section 24(e) of the National Police Service Act, No. 11A of 2011, thereby crippling the criminal justice system. In effect, they hold that this court would be usurping the statutory mandate of the 2nd and 3rd Respondents if it were to take up that role as proposed by the Applicant. 26.The discretion exercised by the 2nd and 3rd Respondents was lawful, reasonable, and guided by relevant considerations, and this Honourable Court cannot substitute its own view for that of the Respondents in the absence of demonstrable abuse of power. 27.The application is premature, speculative, and based on mere apprehension, the Applicant having failed to demonstrate any actual prejudice or violation of rights occasioned by the 2nd and 3rd Respondents actions. This court is therefore urged to dismiss the application for being incompetent and lacking in merit. Submissions; 28.The matter was canvassed by way of written submissions by respective parties through their counsel. 29.The Applicant through his counsel made submissions outlining two main issues for determination before this honorable court:a.Whether the impugned arrest and detention violate the Applicant's Constitutional Rights.b.Whether the applicant is entitled to the relief's sought? 30.On the first issue the Applicant employees Article 47 of the Constitution of Kenya stating that it guarantees a right to fair administrative action which includes administrative action that is expeditious, efficient, lawful, reasonable and procedurally fair. While Article 50 of the constitution of Kenya, 2010 envisages the right to a fair hearing. The Article provides that every person has the right to a Fair trial which includes the right to be presumed innocent until the contrary is proved. 31.The Applicant herein places reliance on the court's decision in Judicial Service Commission v Mbalu Mutava & another 12015/ eKLR where it was held that:“Article 47(1) marks an important and transformative development on administrative Justice it not only lays a constitutional foundation for control of the powers of state organs and other administrative bodies but also entrenches the right to fair administrative action in the bill of Rights. The right to fair administrative action is a reflection of some of the national values in article 10 such as the rule of law human dignity social justice/ good governance/ transparency and accountability. The administrative actions of public officers' state organs and other administrative bodies are now subjected by article 47(1) to the principle of constitutionality rather than to the doctrine of ultra vires from which administrative law under the common law was developed” 32.Further, the case of Independent Electoral and Boundaries Commission v Maina Kiai & 5 Others /20171 eKLR the court of appeal stated as follows:“When the people of Kenya adopted, enacted, and gifted themselves and their future generations the 2010 Constitution, it was not an ordinary, common- place act. Nor was it an empty ritual. Rather, it was an epochal moment, pregnant with meaning and significance, and speaking to the indomitable will of the people to take charge of their destiny and bend the arc of history to align with their most cherished aspirations and ideals as to how they wished to be governed and to organize their affairs. Theirs doubtless the most momentous act of sovereignty and self-determination since Independence, and in the Constitution, they declared the birth new dispensation founded on the essential values of human rights, equality, freedom, democracy, social justice and the rule of law emphasis.” 33.The Applicant thereby submits that the Respondents have undermined and violated the applicant's right to fair hearing by arresting him without any reasonable cause for danger in connection to a pending dispute at Milimani Court MCELC No. 341 0/2025. 34.The Applicant further submits that the Respondents’ conduct is a Violation of Article 49 of the Constitution. That the Respondents unlawfully arrested, harassed and incarcerated the applicant herein on 19th May, 2025. and summoning the applicant on the 20th May 2025 at Capitol Hill Police Station and having him elect to pay cash bail or bond for his freedom. 35.The Applicant submits that the officers who arrested him including one Susan Wambugu and Kelvin Kithinji, failed to inform the applicant of the reasons for his arrest and his rights as an arrested person therefore violating the right to be informed promptly of the reasons of the arrest and to be treated humanely as provided by Article 49 of the constitution. The only basis given by the respondents for the applicant's arrest was that they purported to have gotten instructions to arrest him in connection to the pending land dispute being MCELC/341 of 2025. 36.That his arbitrary detention violated his right to personal liberty and dignity, as enshrined in Articles 28 and 29 of the Constitution. 37.The conduct of the respondents through their agents is a total violation of the applicant's right to fair hearing as the respondents are condemning the applicant unheard and acting on the whims and directions of persons' unknown to the applicant, instead of following due procedure and letting the court decide the case on its merits. 38.We further submit that the Respondents conduct amounted to an Abuse of Police Powers. The pattern of arbitrary arrests and extortion practiced by the police officers constitutes an abuse of police powers and this Honourable Court has the duty to protect citizens from such systemic abuse and ensure the rule of law is upheld. 39.The respondents and or their agents cannot simply purport to arrest the applicant on the whims of instructions by persons' unknown to the applicant and proceed to condemn the applicant unheard for a matter that is currently pending trial in court. 40.Mumbi J in the case of Antony Njenga Mbuli and 5 others v Attorney General Constitutional Petition No. 45 of 2014) [2015] KEHC 6970 (KLR) held as follows:“That the conduct by law enforcement officers profiling suspects on mere suspicion, arresting and detaining them with no evidence for crime committed is arbitrary and discriminatory guaranteed in our constitution.” 41.On the issue of reliefs, sought, the applicant submits that as per the analysis herein, he is entitled to the relief's sought and an order of damages by the respondents finding in favor of the applicant for the unlawful arrest. 42.The Applicant outlines the issues for determination before this honorable court:a.Whether the 1st and 2nd Respondents acted contrary to their statutory mandate/power.b.Whether the Applicant should be entitled to reliefs prayed for. 43.The 1st Respondent’s Replying Affidavit sworn by CI Susan Wambugu (the Investigating Officer) details a legitimate criminal investigation. Investigations were commenced pursuant to a complaint by Patson Patrick Kariuki Njagi regarding malicious damage to property and forcible detainer (Annexures SW1 and SW1a). 44.The affidavit demonstrates that the allegations are not merely a civil land dispute but have criminal elements. The complainant holds a valid title deed for LR No. 15400/497 (Annexures SW2, SW3, SW4), which was allegedly damaged by the Applicant. 45.The Respondents depones that the Court cannot direct public officers on how to exercise their statutory discretion, as this amounts to the Court substituting its own view for that of the investigative body. The prayers for Mandamus and Prohibition are framed in a manner that seeks to direct the 1st and 2nd Respondents to “consider” the pendency of the civil case. This is a directive on how to exercise discretion, which is impermissible in judicial review. 46.The Respondent avers that Applicant alleges a violation of the right to fair administrative action (Article 47) and a fair hearing (Article 50). 47.The Replying Affidavit of CI Susan Wambugu demonstrates that the Applicant was given a chance to be heard. He was summoned to the DCI offices (Annexure SW5), informed of the allegations during the cautionary statement (Annexure SW6), and was given an opportunity to present his ownership documents, which he declined to do. 48.The Applicant was lawfully arrested, informed of his rights, and released. There is no evidence of a denial of a fair hearing in the context of an administrative or quasi-judicial body. The criminal justice process (investigation by police and decision by ODPP) is still ongoing. 49.The 3rd Respondent in the submissions relies on The Constitution of Kenya, 2010, under Article 244, outlining the functions of the National Police Service as:a.striving for the highest standards of professionalism and discipline;b.preventing corruption; andc.complying with constitutional standards of human rights and fundamental freedoms. 50.The 3rd Respondent submits, the police are not empowered to adjudicate disputes or determine guilt or innocence. Their role is purely investigative and administrative. 51.The 3rd Respondents avers that in the instant case, the actions of CI Susan Wambugu, issuing a summons under Section 52(1) of the National Police Service Act, recording a cautionary statement (Annexure SW6), and forwarding the file to the ODPP (Annexure SW7), are quintessentially administrative acts. They involve no determination of rights or liabilities, only the gathering of evidence. 52.The 3rd Respondent further submits that in judicial review, the Court does not substitute its own decision for that of the administrative body. The grounds for review are well settled: illegality, irrationality, and procedural impropriety. 53.The Applicant alleges that the police are acting in bad faith because the dispute is "live" before the Environment and Land Court. However, the existence of a civil suit does not oust the jurisdiction of the police to investigate criminal aspects of the same transaction. 54.The 3rd Respondent additionally relies on Section 193A of Criminal Procedure Code stating that if any matter in issue in criminal proceedings is also directly or substantially in issue in any pending civil proceedings, that should not be a ground for any stay, prohibition or delay of the criminal proceedings. Section 193A of the Criminal Procedure Code 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 proceeding.” 55.The Respondent submits that a decision to investigate a criminal complaint arising from a land dispute is not, without more, irrational. The police are entitled to form their own view based on the evidence before them. The fact that the Applicant claims ownership does not render the investigation irrational. The Respondents’ actions fall far short of this threshold. 56.The Applicant claims a violation of Article 47 (fair administrative action) and Article 50 (fair hearing). However, the Replying Affidavit of CI Susan Wambugu (paragraphs 8, 9, 12) demonstrates that:a.The Applicant was summoned to appear for questioning.b.He was informed of the allegations during the cautionary statement.c.He was given an opportunity to present documents supporting his claim of ownership, which he declined to do. 57.The 3rd Respondent submits that the police are entitled to continue their administrative investigative functions irrespective of the civil suit. 58.Further, the Applicant seeks an order of Mandamus directing the police to "consider that the matter is a live matter pending before a court." 59.According to the 3rds Respondent Mandamus lies to compel the performance of a public duty, not to dictate how discretion is exercised. The police have already considered the existence of the civil case they have simply attached different weight to it than the Applicant desires. 60.Similarly, Prohibition cannot issue to restrain lawful administrative action. The Applicant has not demonstrated that the police are acting without jurisdiction or in excess of jurisdiction. The Respondents submit that the Applicant has not established any ground for judicial review that is illegality, irrationality, or procedural impropriety. 61.The 3rd Respondents argues that the application seeks to have the Court usurp the statutory discretion of the police and the ODPP. The application is premature as the investigative process is ongoing and no decision to charge has been made. 62.The Respondents further pray that the Honourable Court dismiss the Notice of Motion dated 12th June 2025 with costs. 63.Having considered the application as presented and the affidavit in support, the annexures thereto and submissions filed by the Applicants, the issue for determination is whether orders sought are available to the Applicant. 64.The Court of Appeal in the case of Municipal Council of Mombasa v Republic and Umoja Consultants Limited (supra) pronounced as follows:“Judicial review is concerned with the decision-making process, not with the merits of the decision itself. The court would concern itself with such issues as to whether the decision makers had the jurisdiction, whether the persons affected by the decision were heard before it was made and whether in making the decision the decision maker took into account irrelevant matters .... The court should not act as a Court of Appeal over the decider which would involve going into the merits of the decision itself such as whether there was or there was no sufficient evidence to support the decision touching on violation of fundamental rights.” 65.The National Police Service draws its mandate from Article 245 of the Constitution of Kenya, which provides that:“The Cabinet secretary responsible for police services may lawfully give a direction to the Inspector-General with respect to any matter of policy for the National Police Service, but no person may give a direction to the Inspector-General with respect to:a.the investigation of any particular offence or offences;b.the enforcement of the law against any particular person or persons; orc.the employment, assignment, promotion, suspension or dismissal of any member of the National Police Service.” 66.Based on the above constitutional provisions, the 1st and 2nd Respondents were well within their authority in arresting and conducting investigations on the Applicant. This view was further echoed by Judge J.M. Mativo in Republic v Kenyatta University & another. Misc. Civil Application No. 111 Of 2018 where the learned judge held:“It is my view that the nature and circumstances of the decision fall into the category of areas, which are not disturbed by the courts unless the decision under challenge is illegal, irrational, or un-procedural. The applicant also seeks an order of Mandamus. Mandamus is a judicial command requiring the performance of a specified duty, which has not been performed. Mandamus is employed to compel the performance, when refused, of a ministerial duty, this being its chief use. It is also employed to compel action, when refused, in matters involving judgment and discretion, but not to direct the exercise of judgment or discretion in a particular way, nor to direct the retraction or reversal of action already taken in the exercise of either” 67.Based on the Applicants submissions and documents availed in court; it is my considered view that the Applicant has not provided any evidence in support of the violations of constitutional rights claims against the Respondents. As is provided for under Section 107 (1) of the Evidence Act:“Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist.” 68.This was supported in Leonard Otieno v Airtel Kenya Limited [2018] eKLR, where the held that:“It is a fundamental principle of law that a litigant bears the burden (or onus) of proof in respect of the propositions he asserts to prove his claim. Decisions on violation of constitutional rights should not and must not be made in a factual vacuum. To attempt to do so would trivialize the constitution and inevitably result in ill-considered opinions. The presentation of clear evidence in support of violation of constitutional rights is not a mere technicality; rather, it is essential to a proper consideration of constitutional issues.” 69.The Applicant the issue that the ongoing civil matter and should not be interfered with by instituting parallel criminal proceedings. This argument in my opinion lacks legal backing as is well guided under Section 193A of the Civil Procedure Code, which provides as follows:“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.” 70.This position was restated by Judge Edward Muriithi in Samson Kimathi & 3 others v Arthur Mathew Raphael Muthuri & another [2021] KEHC 6958 (KLR) Miscellaneous Civil Application No. E18 of 2021 where he stated that:“The jurisdiction of a court to adjudicate over a civil matter is separate and distinct from the court’s jurisdiction over a criminal matter. For civil matters, the cause of action arises from a wrong committed by one to the other in the private sphere of law whereas for the criminal matter, the basis to press charges and initiate prosecution would arise from a breach of law already prescribed for by law.” 71.I therefore find that the Applicant has not explicitly brought a compelling case to suggest that the Respondents’ conduct is akin to or demonstrative of illegality, irrationality or procedural impropriety or breach or threatened breach of the Applicant’s constitutionally guaranteed rights. 72.The upshot is that I am persuaded that the applicant has not categorically brought in a compelling case to warrant the reliefs sought. It is my considered view that Courts will only interfere with this specific category of decisions if they are illegal, irrational, or procedurally flawed, to which the Applicant has failed to prove. Regarding the requested order of mandamus, it is a tool used to compel an authority to perform a mandatory duty it has refused to do. While it can force a decision-maker to act in matters involving discretion, it cannot dictate on how that discretion should be exercised, nor can it reverse an action already taken. 73.The upshot of the matter is that the Application is dismissed. The nature of the Application dictates that no orders should be made as to costs. In the circumstances, each party to bear its own costs. DATED, SIGNED AND DELIVERED VIRTUALLY ON THIS 2ND DAY OF JULY, 2026.HON. T. W. OUYA, OGWJUDGEIn the presence of:Mumbi for Mr. Ndung’u for ApplicantsNyabuto – Court Assistants