https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9226

Kabundu v Inspector General of Police & 2 others (Petition E015 of 2025) [2026] KEHC 9226 (KLR) (Civ) (30 June 2026) (Judgment) Neutral citation: [2026] KEHC 9226 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Law Courts) Civil Petition E015 of 2025 DR Kavedza, J June 30, 2026 Between Stephen Chege Kabundu Petitioner and Inspector General of Police 1st Respondent Director Of Criminal Investigations 2nd Respondent Director Of Public Prosecutions 3rd Respondent Judgment 1.The Petitioner seeks declaratory and injunctive relief to restrain the Respondents from arresting, detaining or prosecuting him in relation to alleged forgery of a birth certificate and the alleged provision of false information to procure a birth certificate. He contends that the intended prosecution is unlawful, malicious and unsupported by any factual foundation, and therefore violates his constitutional rights under Articles 29, 47, 48 and 50 of the Constitution as read together with Articles 10, 157, 244 and 245. 2.His case is that he is a Kenyan citizen born in Nairobi and is the holder of Birth Certificate No. 64xxx7, which was issued during his childhood and handed to him by his late mother. He maintains that, as is the ordinary practice, he played no role in the registration of his birth or the procurement of the certificate and therefore could not have supplied false information to the Registrar of Births. 3.He states that in August 2025 he was summoned by officers of the 1st and 2nd Respondents and informed that he was under investigation for forgery of Birth Certificate No. 18xxxx7, giving false information to procure Birth Certificate No. 64xxx7, giving false information to a public officer, and obtaining registration by false pretences. According to the Petitioner, Birth Certificate No. 18xxxx7 is unknown to him and he first saw it when it was shown to him by the investigating officers. He denies having ever procured, possessed, used or presented that document to any person or public authority. 4.The Petitioner further avers that despite informing the investigators that he was not involved in obtaining his birth certificate and had never seen the impugned document before, the Respondents have resolved to arrest and prosecute him. He contends that the investigators have neither disclosed the source of the alleged forged birth certificate nor identified any complainant or person to whom he is alleged to have presented it. He argues that in the absence of such material, there is no factual basis linking him to the alleged offences. 5.He maintains that he has never furnished false information to any public officer or participated in the registration of his birth. He asserts that the intended prosecution is founded on fabricated allegations and is calculated to harass, intimidate and persecute him rather than to enforce the criminal law. He further states that officers have repeatedly visited his residence and those of his relatives in search of him, giving rise to a genuine apprehension of imminent arrest and prosecution. 6.On that basis, the Petitioner contends that the Respondents have acted, or threaten to act, in excess of their constitutional and statutory mandates. He submits that the intended arrest and prosecution are arbitrary, irrational and constitute an abuse of investigative and prosecutorial powers. He therefore prays for a declaration that the Respondents' intended actions violate the Constitution and infringe his fundamental rights and freedoms, a permanent injunction restraining the Respondents from arresting, detaining or prosecuting him in relation to Birth Certificate Nos. 64xxx7 and 18xxxx7, and such further relief as the Court may deem just and appropriate. 7.The Respondents opposed the Petition through a replying affidavit dated 31st March 2026 sworn on their behalf by PC Boniface Rapudo. They aver that the investigations giving rise to the intended prosecution were commenced lawfully following information received regarding irregularities in the Petitioner's birth registration records. They contend that the investigations were undertaken pursuant to their constitutional and statutory mandates and deny that they acted unlawfully, maliciously or for any ulterior purpose. 8.The Respondents state that investigations established the existence of two birth certificates bearing the Petitioner's particulars, namely Birth Certificate Nos. 64xxx7 and 18xxxx7. They aver that the circumstances surrounding the issuance of the two certificates warranted further investigations and that the Petitioner was accordingly summoned to record a statement. They maintain that he was informed of the allegations under investigation and afforded an opportunity to explain the discrepancies identified during the investigations. 9.The Respondents deny the Petitioner's assertion that Birth Certificate No. 18xxxx7 was manufactured or planted by the investigators. They aver that the document formed part of the material gathered during the investigations and that all relevant evidence was compiled into an investigation file for consideration by the appropriate authorities. They further state that the investigations were conducted objectively, professionally and in accordance with the law. 10.The Respondents reject the allegation that the intended arrest and prosecution are motivated by malice, bad faith or an improper purpose. They deny harassing, intimidating or persecuting the Petitioner and contend that any visits made to his residence or those of his relatives were undertaken solely in the course of lawful investigations after efforts to reach him had proved unsuccessful. 11.They further aver that the National Police Service is constitutionally mandated to investigate criminal offences, while the Director of Public Prosecutions is independently mandated to review investigation files and determine whether criminal proceedings should be instituted. They contend that those constitutional mandates cannot be curtailed merely because a suspect disputes the evidence collected during investigations or maintains his innocence. 12.The Respondents maintain that the Petitioner has not demonstrated any violation or threatened violation of his constitutional rights. They assert that no decision to prosecute is unlawful merely because it is adverse to the person under investigation and that, if charged, the Petitioner will enjoy all the constitutional safeguards guaranteed to every accused person, including the presumption of innocence and the right to a fair trial. 13.They further contend that the Petitioner has failed to demonstrate that the investigations were commenced without reasonable cause or that the intended prosecution is an abuse of the criminal justice process. They maintain that the Petition is speculative, founded solely on the Petitioner's apprehension of arrest and intended to prevent the Respondents from discharging their constitutional and statutory duties. 14.The Respondents therefore pray that the Petition be dismissed with costs, contending that the Petitioner has not established any constitutional or legal basis for the grant of the declarations, permanent injunction or other reliefs sought. 15.In a further affidavit, the Petitioner reiterates that the Petition does not invite the Court to determine his criminal culpability but rather challenges the legality and constitutionality of the investigative and prosecutorial process. He contends that the intended charges lack both factual and legal foundation, as the Respondents have failed to establish either the act complained of or the requisite criminal intent. 16.He maintains that Birth Certificate No. C64xxx7, issued in 1999, is the only birth certificate he has ever known and used, while Birth Certificate No. B18xxxx7, issued in 2024, is a document unknown to him and first brought to his attention by the investigators. He asserts that his identity had long been recognised and verified by the State through his National Identity Card, passport, educational records and other official documents, and that the 1999 birth certificate merely reflected an already established identity rather than creating it. 17.The Petitioner further avers that the Respondents have produced no evidence that he applied for, procured or used either birth certificate dishonestly, or that he knowingly made any false representation to a public officer. He contends that the investigations were driven entirely by complaints lodged by his siblings in the context of an ongoing family and succession dispute, without any independent verification of the provenance of Birth Certificate No. B18xxxx7 or the circumstances of its issuance. He also points to the timing of that certificate, issued shortly before his mother's death, as a matter warranting further investigation rather than attribution to him. He therefore maintains that the intended prosecution is based on unverified allegations, improper assumptions and an unlawful reversal of the burden of proof. 18.The Court has carefully considered the Petition, the affidavits filed by the parties, the submissions by the parties and the applicable law. 19.The issues falling for determination are whether this Court should interfere with the Respondents' exercise of their investigative and prosecutorial mandates, whether the Respondents violated Articles 157 and 245 of the Constitution in investigating the Petitioner, and whether the Petitioner is entitled to the reliefs sought. 20.It is settled that this Court, as the guardian of the Constitution, has jurisdiction under Article 165(3)(d)(ii) of the Constitution to intervene where investigative or prosecutorial powers are exercised unlawfully, irrationally or in abuse of the legal process. Equally, the Court must exercise restraint and should not interfere with constitutionally mandated investigations merely because a suspect challenges the allegations. 21.In Republic v Director of Public Prosecutions & 2 Others ex parte Zablon Agwata Mabea [2017] eKLR, citing Kuria & 3 Others v Attorney General [2002] 2 KLR 69, the Court held that:“The Court has the 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." 22.Similarly, the Supreme Court in Cyrus Shakhalanga Khwa Jirongo v Soy Developers Ltd & 9 Others [2021] eKLR stated:“Although the DPP is thus not bound by any directions, control or recommendations made by any institution or body, being an independent public office, where it is shown that the expectations of Article 157(11) have not been met, then the High Court under Article 165(3)(d)(ii) can properly interrogate any question arising therefrom and make appropriate orders." 23.The question, therefore, is whether the Petitioner has demonstrated that the Respondents' actions fall within those exceptional circumstances. 24.The Petitioner's case is that he is the lawful holder of Birth Certificate No. C64xxx7 issued in 1999, which he received from his late mother, and that he played no role in procuring it. He further contends that Birth Certificate No. B18xxxx7 is unknown to him and that he first saw it when it was produced by the investigators. He maintains that the Respondents have failed to establish who procured the latter certificate, where it originated from, or how it is attributable to him. He further attributes the complaint to an ongoing family dispute concerning succession and contends that the intended prosecution is malicious and intended to harass him. 25.The Respondents, however, maintain that investigations commenced after receipt of a complaint disclosing possible criminal offences relating to the Petitioner's birth registration records. They state that investigations revealed the existence of two birth certificates bearing the Petitioner's particulars and that the Petitioner was accorded an opportunity to record a statement before the investigation file was compiled. They deny acting maliciously or at the behest of any private individual. 26.The Court finds that the existence of two birth certificates bearing substantially similar personal particulars constituted sufficient basis to warrant investigations. Whether one certificate is genuine, whether the other is forged, who procured it and whether the Petitioner bears any criminal responsibility are matters falling squarely within the investigative and, if necessary, trial process. Those questions cannot properly be determined in a constitutional petition. 27.The Court is guided by the decision in Republic v Commissioner of Police & Another ex parte Michael Monari & Another [2012] eKLR, where Warsame J. (as he then was) stated:“The police have a duty to investigate 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. 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." 28.Likewise, the Court of Appeal in Diamond Hasham Lalji & Another v Attorney General & 4 Others [2018] eKLR held:“In considering the evidential test, the court should only be satisfied that the evidence collected by the investigative agency upon which DPP's decision is made establishes a prima facie case necessitating prosecution. At this stage, the courts should not hold a fully-fledged inquiry to find if evidence would end in conviction or acquittal. That is the function of the trial court." 29.The Petitioner's argument that he neither procured nor used the impugned birth certificate, that his identity had long been recognised through his National Identity Card and passport, and that the impugned certificate emerged during a family succession dispute, may ultimately constitute part of his defence. They do not, however, demonstrate that the Respondents acted outside their constitutional mandate or that the investigations are actuated by bad faith. 30.Investigative agencies are expected to receive complaints from members of the public and independently assess whether criminal conduct may have occurred. The allegation that the complaint originated from the Petitioner's siblings does not, by itself, establish abuse of process.The mere fact that a complaint arises from a family dispute does not deprive the police of jurisdiction to investigate if the complaint discloses the commission of a cognisable offence. 31.The Court is persuaded by the reasoning in Jacob Juma & Another v Commissioner of Police & Another [2013] eKLR, where it was observed that:“The mere fact that a complaint is lodged does not justify the institution of a criminal prosecution. Law enforcement agencies are required to investigate the complaint before preferring a charge……..The police must act impartially and independently on receipt of a complaint and are expected to carry out thorough investigations." 32.There is no material before this Court demonstrating that the Respondents failed to investigate the complaint independently or that they acted under the direction of the complainants. Equally, there is no evidence that the intended prosecution has been commenced for an ulterior purpose or that the Respondents have abdicated their constitutional obligations under Articles 157 and 245 of the Constitution. 33.The Petitioner also contends that the Respondents have not proved the essential elements of the offences under investigation. That submission is premature. At this stage, the Court is not required to determine whether the evidence is sufficient to sustain a conviction. Its role is confined to determining whether the investigative and prosecutorial process is unconstitutional, unlawful or an abuse of process. On the material before the Court, no such finding can properly be made. 34.The constitutional guarantees under Articles 29, 47, 48 and 50 remain available to the Petitioner throughout the criminal process should charges ultimately be preferred. He will have the opportunity to challenge the admissibility, authenticity and probative value of the evidence relied upon by the prosecution before the trial court. This Court cannot, under the guise of constitutional adjudication, usurp the jurisdiction of the trial court by determining contested factual issues or evaluating the sufficiency of the prosecution's evidence. 35.In the circumstances, I find that the Petitioner has failed to establish that the Respondents exercised their investigative or prosecutorial powers unlawfully, irrationally, maliciously or in abuse of the legal process. He has equally failed to demonstrate any actual or threatened violation of his constitutional rights warranting the intervention of this Court. 36.Accordingly, the Petition lacks merit and is hereby dismissed. each party shall bear its own costs.Orders accordingly. JUDGEMENT DATED AND DELIVERED VIRTUALLY THIS 30TH DAY OF JUNE 2026D. KAVEDZAJUDGEIn the presence of:Petitioner AbsentMs. Otiyo for the RespondentKarimi Court Assistant.