Kahia v Director of Criminal Investigations & 3 others (Miscellaneous Criminal Application E466 of 2024) [2026] KEHC 13294 (KLR) (21 August 2026) (Ruling)

**REPUBLIC OF KENYA** **IN THE HIGH COURT AT NAIROBI** **MISC. CRIMINAL APPLICATION NO. E466 OF 2024** **IN THE MATTER OF : ARTICLES 22,23,24,25,27,28,29,40,47 AND 50 OF THE CONSTITUTION OF KENYA, 2010** **AND** **IN THE MATTER OF: CRIMINAL PROCEDURE CODE (CHAPTER 75 OF THE LAWS OF KENYA)** **AND** **IN THE MATTER OF: A RULING DELIVERED ON 23RD SEPTEMBER 2025** **AND** **IN THE MATTER OF THE INHERENT POWERS OF THE COURT** **BETWEEN** **OSMAN AHMED KAHIA------------------------------------------ APPLICANT** **VERSUS** **DIRECTOR OF CRIMINAL INVESTIGATIONS------ 1ST RESPONDENT** **INSPECTOR GENERAL OF POLICE-------------------- 2ND RESPONDENT** **DIRECTOR OF PUBLIC PROSECUTION--------------3RD RESPONDENT** **AND** **AFRICA GAS AND OIL LIMITED (AGOL)--------INTERESTED PARTY** **RULING** 1. The applicant by way of a Notice of Motion dated 29th October 2025 sought a review of this court’s ruling delivered on 23rd September 2025. 2. On the face of the application the applicant sought the following orders specifically;- **a).** THAT this Application be certified as being extremely urgent, and the same be admitted to hearing on a priority basis **(spent)** b). THAT service of the Application be dispensed with and the same be heard ex **parte in the first instance;(spent)** **c).** THAT pending the hearing and determination of this application, there be a temporary order maintaining the status quo and restraining any further police or administrative action at the instance or instigation of AGOL Limited or its associates. **d).** THAT this Honourable Court be pleased to revise and vary its Ruling delivered on 23rd September 2025, to the extent that it excluded AGOL Limited (the Interested Party) from the ambit of the Court's anticipatory and protective orders. **e).** THAT upon such revision, the said orders of anticipatory bail and constitutional protection be expressly extended to include AGOL Limited, restraining it whether by itself, its agents, servants, employees, or through any State or non-State agency, from initiating, procuring, or sustaining any complaint, investigation, or other action intended to harass, intimidate, or unlawfully interfere with the Applicant's liberty. **f).** THAT this Honourable Court do issue a declaratory order affirming that AGOL Limited has been and continues to act as the primary instigator of the administrative and security actions complained of, and that its exclusion from the protection granted by the Court would render the said orders ineffective and illusory. **g).** THATcosts of this application be provided for. 1. The application was supported by the Affidavit of OSMAN AHMED KAHIA. 2. Further, the applicant set out the following grounds: **a)** That on 23rd September 2025, this Honourable Court rendered its ruling on the Applicant's application dated 10th December 2024, granting anticipatory bail and protection against unlawful arrest and harassment by the Respondents. **b)** That while the Court granted the protective orders sought, it found that AGOL Limited did not appear to have lodged an active or bona fide criminal complaint, and therefore excluded it from the ambit of the orders. **c)** That the said finding constitutes a mistake or error apparent on the face of the record, as the totality of the evidence before this Honourable Court demonstrates that AGOL Limited was the principal instigator and beneficiary of the unlawful police and administrative actions complained of. **d)** That the continued exclusion of AGOL Limited from the scope of the Court's orders has rendered those orders ineffective and illusory, as AGOL continues to act through compromised State officers and security agencies to perpetuate harassment, intimidation, and unlawful interference with the Applicant's property. **e)** That new and material evidence has since emerged showing AGOL's direct involvement in orchestrating an attempted forceful and unlawful takeover of the Applicant's land, aided by armed police officers, in disregard of judicial determinations affirming the Applicant's ownership. **f)** That the Respondents' failure to act on the Applicant's numerous complaints, including those made to the Head of Public Service and the Inspector General of Police, constitutes a breach of the Applicant's right to fair administrative action under Article 47 of the Constitution, further enabling AGOL's continued abuse of the criminal justice process. **g)** This Honourable Court has the inherent jurisdiction to supervise and review the exercise of powers by investigative and prosecutorial agencies where such powers are being abused or exercised for improper purposes. **h)** That in view of the persistent misuse of police powers at the instigation of AGOL, and the continuing violation of the Applicant's constitutional rights, it is just, equitable, and in the public interest that this Honourable Court revises and enlarges the scope of its protective orders. **1)** That unless the orders sought were granted, AGOL would continue to misuse criminal process and administrative structures to harass, intimidate, and unlawfully dispossess the Applicant, undermining both the authority of this Court and the rule of law. **J)** That the application had been brought without undue delay, in good faith, and in the interest of justice, 1. **The applicant was represented at the hearing by Mr ATHMAN Advocate who submitted that** the applicant was seeking review of the Ruling of 23rd Feb 2025. 2. According to Counsel the Ruling ought to be reviewed to include Property Plot No. MN/VI/5169 and all other properties adjoining the said property so that if there is any complaint against the Applicant in connection with those properties then the same be done lawfully and in keeping with procedure. 3. Mr. Athman further argued that his client had been constantly harassed notwithstanding the orders of this court. 4. Counsel disclosed that there is a civil dispute pitting his client and the interested party a matter that had previously been brought to light in the earlier proceedings leading to the impugned ruling. 5. Counsel further submitted that they had gone through civil proceedings and the property had been found to belong to his client. 6. The applicant urged the court to examine the annextures to his affidavit so as to get the full picture of the matter. 7. Counsel specifically referred the court to annexture marked “OAK8" which is a letter dated 22/10/2024 by County Commander **Kwale.** 8. **In the said letter counsel complained that his client was being accused** sponsoring goons and he was alleged to be an Alshabaab sympathizer. 9. The court was also told that matter was basically an issue of ownership dispute of Property No. 5169. 10. Counsel further informed the court that his client had filed a complaint with the Head of Public Service over police conduct in this matter. 11. Mr Athman however submitted that his client was willing to cooperate with authorities should the need arise since he was aware that there is yet another investigation file before the DPP for action. 12. He thus urged the court to review its orders and include the property in issue. 13. The applicant also swore an affidavit in support of the application whose contents this court has duly considered. 14. The Applicant stated that he made several complaints to the Inspector General of Police, Head of Public Service and IPOA concerning invasions of his property, harassment, threats, destruction of property and alleged police collusion. 15. He went on to allege that the authorities failed to investigate or act on his complaints, amounting to a violation of his right to fair administrative action under Article 47. 16. He states that on 31st October 2025, the alleged Operational Order was implemented through the deployment of armed police and administrative officers. Portions of his property were allegedly fenced off and occupied, construction materials and equipment brought onto the land, and his workers threatened, assaulted and ordered to vacate. He maintains that these actions occurred despite existing court determinations affirming his ownership. 17. The applicant contended that the 3rd Respondent independently reviewed the dispute and, by letters dated 19th December 2024 and 16th January 2025, found that the matter concerned land ownership, disclosed no criminality on his part, and directed closure of the relevant inquiry files. 18. Despite those directions, the Applicant states that investigations continued. A letter dated 16th April 2025, annexed as OAK-15, indicated that investigations were still ongoing. He questions the legal basis upon which the 1st and 2nd Respondents continued investigating a matter already determined to be civil and whose files had been ordered closed. 19. The Applicant alleges that AGOL, DOPP International and certain public officials have acted together to harass and dispossess him of his property through State machinery. He contends that their conduct amounts to contempt of court and violates his constitutional rights under Article 40 (right to property) and Article 27 (equal protection and benefit of the law. 20. He therefore sought the Court's review and enlargement of the existing anticipatory bail orders to expressly protect him from complaints or actions initiated by AGOL or its associates through the police, investigative agencies or other State institutions. 21. Mr. **MOGERE prosecution counsel appeared for the respondent. He relied on** the letter dated 16/1/2025 by DPP to the DCI and I.G**.** 22. The letter according to Mr. Mogere was to the effect that the DPP did not intend to charge the applicant in relation to Property No. LR 5169 and LR 5255. 23. Counsel was categorical that the matters are purely civil and there is no intention to charge the applicant. 24. Mr**. NGENO appearing for the interested party submitted that** the applicant vide Misc. App 466/2024 sought anticipatory bail. The application was heard and determined on 23/9/2025. The applicant was granted anticipatory bail thus the Application was therefore spent after delivery of Ruling and file closed. 25. Further, the interested party submitted that the DPP confirmed that they are not charging the Applicant. 26. The interested party went on to submit that the applicant was on a forum shopping expedition and that the issues they seek to litigate are matters for ELC Court. 27. The interested party further argued that the Court was being asked to review an anticipatory bail Ruling yet no specific error was apparent on the face of the record. 28. According to the interested party when the application was argued Counsel could not point to a specific complaint by the Interested party. The Court was gracious to ask Counsel but they could not point to any. The interested party contended that the applicant was seeking to go beyond the scope of the application for Anticipatory bail. 29. Further, the interested party made reference to a plaint filed in respect of Mombasa ELC/012 / 2023 **African Gas and** Oil Ltd vs. Kahia Transporters Ltd and others. 30. The applicant is the Director of Kahia Transporters Ltd. The property in that suit was said to be MN/VI/5159 and it was on the issue of ownership. 31. Counsel submitted that there is a temporary injunction issued in that property thus according to the interested party the applicant should have made an application under that suit and ask the court to protect the orders. 32. The interested party argued that the AG advised the police on the order by court and that his client had not attempted to enter that property. The interested party therefore urged the court to dismiss the application. 33. The applicant in a quick rejoinder stated that the civil issues concerning the property touch on LR 5169. The applicant expressed his willingness to cooperate with the police and the court whenever required to do so. **ANALYSIS AND DETERMINATION** 1. The review of a decision by a court is predicated on very specific parameters in law. It is not to be undertaken willy- nilly. 2. A party seeking review of a court decision must meet the test set out in law so as to persuade a court to find in his favor. The party must be able to demonstrate an error apparent on the face of the record or the discovery of a new and important which through exercise of due diligence on the part of the party alleging discovery could not be unearthed. 3. Discussing the scope of Review, the Supreme Court of India in the case of **Ajit Kumar Rath vs State of Orisa & Others, 9 Supreme Court Cases 596 at Page 608.** had this to say: the power can be exercised on the Application of a person on the discovery of new and important matter or evidence which, after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the order was made. The power can also be exercised on account of some mistake or error apparent on the face of the record or for any other sufficient reason. A review cannot be claimed or asked merely for a fresh hearing or arguments or correction of an erroneous view taken earlier, that is to say, the power of review can be exercised only for correction of a patent error of law or fact which stares in the face without any elaborate argument being needed for stabling it. It may be pointed out that the expression “any other sufficient reason” ............... means a reason sufficiently analogous to those specified in the rule” 4. In Republic v Advocates Disciplinary Tribunal Ex parte Apollo Mboya [2019] eKLR High Court of Kenya Nairobi Judicial Review Division Misc. Application No. 317 of 2018 John M. Mativo Judge culled out the following principles from a number of authorities;- A court can review its decision on either of the grounds enumerated in Order 45 Rule 1 and not otherwise. The expression "any other sufficient reason" appearing in Order 45 Rule 1 has to be interpreted in the light of other specified grounds. An error which is not self-evident and which can be discovered by a long process of reasoning cannot be treated as an error apparent on the face of record justifying exercise of power under Section 80. An erroneous order/decision cannot be corrected in the guise of exercise of power of review. A decision/order cannot be reviewed under Section 80 on the basis of subsequent decision/ judgment of a coordinate or larger Bench of the tribunal or of a superior court. 5. The burden lies on the party seeking a review to establish beyond peradventure that such grounds exist and that the court ought to be inclined to grant the orders sought. 6. A review that is sought absent of such grounds cannot therefore succeed. 7. The instant application is interesting to say the least in two respects;- 8. the applicant does not allege that orders issued were issued in error by this court. 9. the application seeks review in a criminal matter which essentially is designed to achieve a very specific purpose which is to protect an individual from unlawful restraint or arrest by the police and the orders were granted in his favor. 10. The argument that even after the grant of the orders investigations have continued to be conducted cannot a basis for review of the earlier orders of this court. 11. A court cannot bar investigations unless the same are shown to be actuated by malice and ill-will and or purely initiated to harass and intimidate an individual without any lawful reason for the same. 12. This court did not bar the police from investigating any matter that is reported to them, 13. All that the court restrained the police from doing is harassing the applicant. 14. The police by merely offering protection to workers around the disputed land cannot be said to have been bent on harassing the applicant. 15. It is the primary duty of the police to offer protection to citizens for the body and property whenever so requested. 16. The annexture “OAK 8” at paragraph 1 shows that there was cause for the police to intervene in the manner they did. 17. The protection of life and property extends to both parties and the police can only play a neutral position thus the court cannot direct the police on operational matters. 18. All that the police must ensure is that there is no unauthorized entry into private property but security they must provide at all times to ensure public safety and security. 19. The applicant in this case got an undertaking from the DPP which is akin to the undertaking that Stanley Munga Githunguri received from the Hon Attorney General during his tribulations. The court in **Githunguri v Republic [1985] KEHC 6 (KLR)** had this to say**;- “**The accused was informed of this in writing by the bank and was told officially of the decision of the Attorney-General not to prosecute as the files were officially closed. In the light of the foregoing, we take the view that to institute proceedings now is both vexatious and an abuse of the process of the court. In the present proceedings however, we can do no more than answer the questions contained in the reference. The incumbents the office of the Attorney- General are one but just as one incumbent may, having reached a decision not to prosecute, change his mind in the light of subsequent events, so may a later incumbent. We think the right to change the decision may be lost if as in the present case the accused has been publicly informed that he will not be prosecuted and property has been restored to him. As a consequence of being led to believe that there would be no prosecution, the accused may have destroyed or lost evidence in his favour.” 1. The applicant in the instant case received an unequivocal communication from the DPP that he would not be prosecuted in this matter and that has been reiterated in these proceedings as well. 2. The court is at a loss what exactly is it that it needs to review in the earlier ruling. The applicant has urged the court to include the interested party in its orders but sadly the applicant does not seem to realize that AGOAL company is not an investigator nor prosecutor thus to direct orders against them in an anticipatory bail ruling would be tantamount to issuing orders in vain. 3. The court cannot similarly bar the company from lodging criminal complaints if any with the police or any other investigative agency. To do so would amount to judicial overreach for it is for the officer to whom a report is made to determine whether there is a probable cause to open investigations or not. That cannot be a function for the court. 4. It was in this respect observed in **Republic vs. Returning Officer of Kamkunji Constituency & The Electoral Commission of Kenya, HCMCA No. 13 of 2008, t**hat the High Court has the responsibility for the maintenance of the rule of law, hence there cannot be a gap in the application of the rule of law. 5. It was precisely for that reason that this court stepped in to protect the applicant through the anticipatory bail order. 6. The applicant if he believes that the AGOAL company and the police are colluding to abuse the criminal justice process, the route to follow is not the route of review of this courts earlier ruling. 7. The applicant is entitled to judicial review orders under Article 23 of the Constitution and remains at liberty to move the court for redress should the need arise. 8. The Court of Appeal persuasively stated in the case of **Commissioner of Police & the Director of Criminal Investigation Department & another v Kenya Commercial Bank & 4 others [2013] eKLR** that: “Clearly, the company and the guarantor through their directors were employing criminal process to assist them in resolving their civil dispute. 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.** We respectfully agree and adopt this position in this case but must add that where it is obvious to a Court, as it is to us and was to the learned Judge of the High Court, that a prosecution is being mounted to aid proof of matters before a civil Court or where the hand of a suspect is being forced by the sword of criminal proceedings to compromise pending civil proceedings, then Section 193A of the Criminal Procedure Code cannot be invoked to aid that unlawful course of action. Criminal proceedings, whether accompanied by civil proceedings or not, cannot and should never be used in the manner that the 2nd and 3rd Respondents have done. It is indeed advisable for parties to pursue civil proceedings initially and with firm findings by the civil Court on any alleged fraud, proceed to institute criminal proceedings to bring any culprit to book. In addition, we shall, later in this Judgment, express ourselves on the criteria to be used by the High Court before terminating any criminal prosecution. Having so said, we have already expressed ourselves on the right to fair trial and we must now make a finding that, in the unique circumstances of the present case, the institution of civil proceedings, simultaneously with criminal proceedings, claiming on one hand that title documents had been lost, while in another, claiming that they were in the possession of the Appellant and his banks or a third party, ASL Ltd, the 10th Respondent, is indeed an expression of mischief and dishonesty. This or another Court should never countenance such conduct for it brings the entire criminal justice into disrepute.’’(**emphasis added)** 1. The applicant thus remains at liberty, should he encounter instances of abuse of police power, to seek appropriate reliefs from court and that right he cannot be denied just like AGOL Company have a right to lodge complaints with the police if aggrieved by acts of criminality against anyone. 2. The request that this court enlarges it orders to incorporate interested party cannot succeed. 3. The AGOL company is not an investigator in law cannot therefore be barred from conducting investigations for they do not have such powers in the first place. 4. In the case of **Commissioner of Police & Another v Kenya Commercial Bank Ltd & 4Others [2013] eKLR** the court held that the High Court can stop a process that may lead to abuse of power and atated thus;- **“Whereas there can be no doubt that the field of investigation of criminal offences is exclusively within the domain of the police, it is too fairly well settled and needs no restatement at our hands that the aforesaid powers are designed to achieve a solitary public purpose, of inquiring into alleged crimes and, where necessary, calling upon the suspects to account before the law. That is why courts in this country have consistently held that it would be an unfortunate result for courts to interfere with the police in matters which are within their province and into which the law imposes upon them the duty of enquiry. The courts must wait for the investigations to be complete and the suspect charged.** By the same token and in terms of Article 157 (11) of the Constitution, quoted above, in exercising powers donated by the law, including the power to direct the Inspector General to investigate an allegation of criminal conduct, the DPP is enjoined, among other considerations, to have regard to the need to prevent and avoid abuse of the legal process. The court on the other hand is required to oversee that the DPP and the Inspector General undertake these functions in accordance and compliance with the law. If it comes to the attention of the court that there has been a serious abuse of power, it should, in our view, express its disapproval by stopping it, in order to secure the ends of justice, and restrain abuse of power that may lead to harassment or persecution. See **Githunguri v Republic [1985] LLR 3090**. 1. The applicant has come to this court out of what I discern to be fear. The respondents have not breached the orders of the court and there is no discovery of any new and important matter or fact to warrant a review. 2. The final orders i make in this application are that the orders earlier on issued by this court should continue to be obeyed and that the applicant should not be subjected to any form of harassment. 3. The issues of property ownership lies beyond the jurisdiction of this court and so are the issues of usufructuary rights to the of AGOL or any other person upon the property of the applicant. The matters of property ownership lie in the province of the ELC court. 4. The upshot of the above is that the application for review is declined since the applicant has not demonstrated any error on the face of the record and that the AGOL company is not an investigator in law to be the subject of anticipatory bail orders. 5. It is so ordered. **DATED, SIGNED and DELIVERED VIRTUALLY at NAIROBI this 21st day of AUGUST 2026**. **A. M. MUTETI** **JUDGE** **In the presence of:** Habiba: Court Assistant Athman for the Applicant Mogere for Respondent Morube h/b Nyaundi for Interested Party