https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10939

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT ELDORET** **CONSTITUTIONAL PETITION NO. E006 OF 2025** **WILSON KIPLAGAT KALYA…………………………….1ST PETITIONER/APPLICANT** **KAREN JEROP CHESOO…………………………………2ND PETITIONER/APPLICANT** **DEBORAH CHIRCHIR…………………………………….3RD PETITIONER/APPLICANT** **VERSUS** **THE DIRECTOR PUBLIC PROSECUTIONS…………………………..1ST RESPONDENT** **THE DIRECTOR OF CRIMINAL INVESTIGATIONS………………..2ND RESPONDENT** **THE KENYA POLICE SERVICE………………………………………...3RD RESPONDENT** **THE ATTORNEY GENERAL……………………………………………4TH RESPONDENT** **JUDGMENT** 1. The Petition herein is dated 19/02/2025 and is filed through **Messrs Mwinamo Lugonzo & Co. Advocates**. Together with the Petition, the Petitioners had also filed a Notice of Motion of the same date seeking conservatory orders which Application, by my Ruling rendered on 31/10/2025, I subsequently allowed after ***inter partes*** hearing, and thus issued the conservatory orders. I thereafter gave directions for hearing of the main Petition. 2. I captured the basis of the Petition in my said Ruling in the following terms: ***“……. the Petitioners sought, basically, a declaration that their alleged intended criminal investigations and/or prosecution for alleged offences arising from their execution of their duties and instructions as Advocates, specifically in relation to the drawing, attestation and certification of the Last Will of one David Kiptoo Cheluget dated 1/07/2022, is unconstitutional and in violation of their fundamental rights and freedoms. Consequently, they have sought an order of prohibition barring the intended investigations or prosecution, award of damages, and costs of the Petition.”*** 1. Reproduced in specific detail, the orders sought in the Petition are as follows: 2. **A declaration that the criminal investigations and intended prosecution of the Petitioners for any alleged offence arising from the 1st and 2nd** **Petitioners’ execution of their duties and instructions as Advocates of the High Court of Kenya specifically in relation to the drawing and attestation of the Last Will and Testament of David Kiptoo Cheluget dated 1st July 2022, as well as the 3rd Petitioner's certification of a copy of the said Will as a true copy of the original would be unconstitutional unlawful, oppressive, an abuse of both the process of the Court and the criminal justice system, and in violation of the Petitioners fundamental rights and freedoms.** 3. **An Order of Prohibition prohibiting the Respondents, their agents, servants, or any other person acting on their behalf from undertaking any criminal investigations or prosecution of the Petitioners in relation to any alleged offence arising from the 1st and 2nd** **Petitioners' execution of their duties and instructions as Advocates of the High Court of Kenya, specifically concerning the drawing and attestation of the Last Will and Testament of David Kiptoo Cheluget dated 1st July 2022, as well as the 3rd Petitioner's certification of a copy of the said Will as a true copy of the original.** 4. **An order directing the Respondents to jointly and severally compensate the Petitioners for the infringement of their constitutional rights, including but not limited to general damages for emotional distress, reputational damage, and an, financial losses incurred as a result of the Respondents' unlawful actions.** 5. **An order awarding the costs of this Petition to the Petitioners, to be borne by the Respondents.** 6. **Such further or other relief as this Honourable Court may deem just and appropriate to grant in the circumstances including measures to prevent future violations of a similar nature by the Respondents.** 7. The Petition is supported by the lengthy 39-paragraph Affidavit sworn by the 1st Petitioner, **Mr.** **Wilson Kiplagat Kalya**, a well-known Senior Advocate. I however note that the Affidavit, save for the conclusion part, is a word-by-word replica of the earlier Affidavit sworn in support of the Application whereof the Petitioners had sought and obtained the conservatory orders. For that reason, I will recount the contents of the Affidavit by simply narrating it in the manner by which I recited it in my earlier Affidavit as follows: ***“3. …………… He deponed that the Petitioners are Advocates practicing in the style and name of Messrs Kalya & Co. Advocates, that on or about 01/07/2022, acting upon the instructions of David Kiptoo Cheluget (Deceased), he prepared the latter’s Last Will and Testament which was then executed by the deceased-testator and attested by 3 witnesses, namely himself, the 2nd Petitioner, and one Claire Nyambura Karuga Advocate, who was then a member of his firm but has since left and joined the Office of the Director of Public Prosecutions. He urged that he took all necessary steps to ensure that the legal formalities for the preparation, execution, and attestation of the Will were adhered to, particularly, that the deceased, although personally known to him for over 3 decades, and having acted as his Legal Counsel in various matters over those years, nevertheless formally identified himself by presenting his original National Identity Card, ensured that the Will was drafted in accordance with the instructions and wishes of the deceased, he confirmed that the deceased fully understood the nature and contents of the Will before appending his signature, personally witnessed the deceased sign the Will in his presence, the presence of the 2nd Petitioner, and the said Claire Nyambura Karuga, all of whom were present at the same time and attested to the execution as witnesses.*** ***4. He deponed that he confirmed, based on his professional assessment as a Legal Practitioner of 36 years, that the deceased was of sound mind and acted voluntarily, without any undue influence, coercion, or duress, and that this conclusion is grounded in the conversations he had with the deceased, during which the deceased lucidly articulated his intentions, provided clear instructions, and demonstrated a thorough understanding of the nature and consequences of the Will, specifically, he engaged the deceased in discussions to ascertain his comprehension of the document, his awareness of the beneficiaries named, and his reasons for distributing his estate in the manner set out in the Will. He urged that in his professional judgment, informed by decades of experience in drafting and executing Wills, the deceased was fully competent and acting of his own free will. He deponed further that the deceased died on 15/06/2024, that in the Will, the testator appointed Hellen Chepkoech Cheluget, Geoffrey Kipkemboi Rono and John Kibiy Koskei as executors of his estate, who then filed Eldoret High Court Probate and Administration Cause No. E111 of 2024, in which the Petition was advertised in the Kenya Gazette on 4/10/2024 under Notice No. 12918, the Grant of Probate was issued to the executors and confirmed*** ***on 7/02/2025, and that to date, no individual has filed any application challenging the authenticity of the Will, its contents, or the manner in which it was executed, or its validity.*** ***5. He then contended that on 6/02/2025, an individual identifying himself as Mr. Kuloba, a police officer attached to the*** ***2nd Respondent based at the Directorate of Criminal Investigations (DCI) in Nairobi, contacted him via phone and informed him that he was required to record a statement regarding a matter in which the Petitioners and the said Claire Nyambura Karuga are being investigated as potential suspects in connection with the alleged forgery of the same Last Will referred to above, that he later received a formal letter from the 1st Respondent to the same effect, which informed them that they were required to present themselves to record statements in relation to the matter, and that upon making further inquiries, he was informed that an undisclosed complainant had lodged a complaint with the 2nd Respondent, alleging that the said Will had been forged. He contended that the allegation of forgery of the Will automatically and logically implicates him and the 2nd Petitioner as potential suspects and persons under investigation, given their roles as the Advocates who prepared and attested to the execution of the Will, that this is despite the fact that the Will was drawn and executed in strict compliance with the law and in accordance with the instructions of the deceased, as confirmed by the due process followed during its preparation and attestation.*** ***He stated that by lodging a complaint with the 1st and 3rd Respondents challenging the validity of the Will without first contesting the same before the Probate Court in Eldoret High Court Probate and Administration Cause No. E1l1 of 2024, aforesaid,*** ***the complainant is seeking to gain a collateral and unfair advantage in his potential future applications in the Probate matter, that this is being done by instigating harassment of the Petitioners, which conduct is not only an abuse of the legal process but also undermines the integrity of the Probate proceedings, which has already confirmed the validity of the Will.*** ***6. He added that by bypassing the Probate Court and initiating criminal investigations, the complainant and the 2nd and 3rd Respondents are attempting to exert undue pressure and prejudice on the Petitioners, thereby subverting the proper administration of justice, the decision by the Respondents to initiate parallel criminal investigations against them with the intention of charging them on the alleged forgery of the signature of the deceased, is unlawful, oppressive, and constitutes an abuse of the Court process and the criminal justice system, as well as a violation of their fundamental rights under the Constitution and this Court ought to restrain such improper, and collateral use of the justice system. He observed that*** ***the letter issued by the DCI on 7/02/2025 erroneously*** ***included the 3rd Petitioner, falsely alleging her involvement in attesting to the Will, yet the 3rd Petitioner neither attested to the said Will nor was she an admitted Advocate of the High Court as of 1/07/2022, and her role was strictly limited to certifying the Will as a true copy of the original.*** ***7. He therefore urged that the decision to prosecute is oppressive, considering that the Petitioners acted solely in their professional capacity in drawing the Will as per instructions received, that they have no proprietary or beneficial interest in the estate of the deceased, their actions were purely undertaken in a professional capacity upon receipt of instructions and payment of legal fees, and that the 2nd and 3rd Respondents initiated investigations based on unfounded allegations without prima facie evidence, amounting to a fishing expedition and violating the principles of natural justice, that the intended prosecution is actuated by an ulterior motive, the invocation of the criminal process by the Respondents is intended to intimidate and interfere with the Petitioners’ role as key witnesses in the ongoing Probate suit, it is designed to humiliate and embarrass the Petitioners rather than to further the interests of justice, it is based on extraneous considerations, and is not driven by the pursuit of justice, is a calculated misuse of the criminal justice system to unlawfully interfere with an ongoing probate dispute pending before a Court of competent jurisdiction, and it is vexatious, and contrary to the principles of fair play.*** ***8. He deponed further that the actions of the Respondents in subjecting Advocates who attested to the Will to unwarranted criminal investigations constitute intimidation of legal practitioners,*** ***violating the protections afforded under the Advocates Act, and undermining the independence of Advocates in discharging their professional obligations without fear of retribution, which actions have compromised the sanctity of Advocate-client privilege, a cornerstone of the legal profession, thereby eroding public confidence in the legal system. He contended further that the Respondents, being public bodies, are bound by the national values and principles of governance as enshrined in Article 3(1) and 10 of the Constitution, which principles have been disregarded in this instance. He averred that the decision to subject the Petitioners to criminal investigations and possible prosecution is thus outrightly illegal, unlawful, and unconstitutional, as they will be greatly prejudiced and will suffer irreparable harm and damage if the intended prosecution proceeds, as their reputation will be unjustifiably tarnished, and their dignity severely compromised ………..”.*** **Responses by the Respondents** 1. In opposing the Petition, the 1st Respondent, the **Director of Public Prosecutions (DPP**), filed the Grounds of Opposition dated 19/01/2026. It was urged therein that the Petitioners have misapprehended the provisions of **Article 157(6)** and **(11**) of the **Constitution**, and that they have failed to demonstrate how the 1st Respondent has threatened or violated the Constitution. It was urged further that the Petition is unripe and speculative, and that the Petitioners have failed to meet the requirements of **Section 107** of the **Evidence Act** that “***he who alleges must prove***”. 2. On their part, the 2nd, 3rd and 4th Respondents, all represented by the **Hon. Attorney General**, had earlier filed the Replying Affidavit sworn on 4/04/2025 by one **Patrick Kuloba**, who described himself as an Officer of the **National Police Service (NPS**) of the rank of Corporal working at the **Directorate of Criminal Investigations (DCI)**. It is that same Affidavit that was relied on in opposing the now spent Application for conservatory orders. There being no other or further Replying Affidavit filed or uploaded by any of the Respondents in the **Judiciary Case Tracking System (CTS**) online portal in this matter, I presume that the same Affidavit is the same one again relied upon by the 2nd, 3rd and 4th Respondents in opposing the Petition. Since I had, in my said earlier Ruling, already recounted the contents of the Affidavit, I will also simply reproduce the narration I made thereon in the Ruling as follows: ***“9. …... He deponed that they received a letter dated*** ***4/12/2024 from a firm known as Glascote Rose requesting them to conduct investigations in respect to the Last Will and Testament of the late David Kiptoo Cheluget on allegations that the Will is a forgery.*** ***10. He deponed that the reasons given for the allegation of forgery was that the signature thereon is different from the signatures the deceased was previously using, that the deceased suffered glaucoma leading to vision loss as a result any documents he signed post-2020 were by way of thumbprint, that the deceased made funeral and last expense wish in his Will that were not disclosed before his funeral, that the Petitioners’ law firm had sought an out of Court settlement in respect to a suit property, as such had there been a Will there would be no reason for settlement, and that the deceased, in an Affidavit, swore that he is a joint owner of the parcel of land No. LR Uasin Gishu/Koimet Scheme 57, and would not have indicated in his Will that he is the sole owner. He deponed further that the complainant's Advocates attached to the said letter a statement from one Abraham Kipruto Cheluget and Mike Cheluget, copies of the Will dated 1/07/2022, letters dated 3/07/2024 and 14/07/2024, and email dated 15/07/2024 in support of their averments, that on a cursory look at the attached samples of signatures of the deceased on the documents provided, more specifically the pleadings in respect to Eldoret ELC No. 115 of 2020; David Kiptoo Cheluget V Abraham Kipruto Cheluget, they noted a discrepancy in the signatures, and have also noted that indeed the deceased may have used a thump-print in the year 2020, and the documents are yet to be subjected to further examinations and forensic analysis, and that before then, they needed to hear from the Petitioners to enable them obtain more information in respect to the issue, and make an informed decision on the way forward.*** ***11. He added that on 9/01/2025, one of the complainants, Mike Kipkorir Cheluget, attended their chambers and recorded a statement to wit that the Will drafted by the Petitioners’ law firm is a forgery, and reiterated the grounds advanced through the letter dated 4/12/2024, and that as a consequence, they decided that they needed to hear from the Petitioners whom they summoned to attend their offices for the purpose of hearing their side of the story and conducting further investigations into the matter. He maintained that there is no law barring the commencement of criminal investigations at any point, that the Succession Court did not look into the issue of forgery, and even if it did so, the ends meant to be achieved in civil proceedings is not similar to the remedies in criminal proceedings, and that criminal and civil proceedings in respect to the same subject matter can proceed simultaneously.*** ***He denied that they have harassed the Petitioners, and pointed out that all they have done is to call the Petitioners and inform them to attend their offices for the purposes of “shedding more light” on the allegations put forth by the complainants, and that as they were waiting for them to come at their convenient time they were served with these constitutional proceedings.*** ***12. According to him, these proceedings were only initiated after a complaint was made with the police, whose mandate under the Constitution and under the National Police Service Act is to receive such complaints, conduct investigations and, where necessary, recommend prosecution to the Director of Public Prosecutions (DPP). He contended further that the manner in which the investigations have been carried out so far including informing the Petitioners of the complaint and requesting them to attend their offices to respond thereto does not violate any provisions of the Constitution, and that the investigations have been conducted in good faith and in pursuit of justice with no intention whatsoever to intimidate, humiliate, harass, embarrass and or interfere with ongoing probate proceedings.”*** **Petitioner’s Further Affidavits** 1. The Petitioners then filed two separate Further Affidavits sworn by the 1st Petitioner on 10/07/2025 and 8/02/2026, respectively, one in response to the Replying Affidavit and the other, in response to the Grounds of Opposition. I do not however deem it necessary to recount the contents of the two as they basically reiterate, in summary, the matters and contentions already advanced in the Supporting Affidavit. **Hearing of the Petition** 1. The Petition was then canvassed by way of written Submissions. The Petitioners’ Submissions is dated 14/01/2026, while the 2nd, 3rd and 4th Respondents’ joint Submissions is dated 9/03/2026. 2. As regards the 1st Respondent (**DPP**), **Prosecution Coinsel Ms. C. Muriithi** handed over a copy of her Submissions in Court, dated 19/01/2026. I however notice that the Submissions has not been filed in the online **Judiciary Case Tracking System (CTS)** portal as required. I will nevertheless, in the interest of justice, consider the Submissions, but with strict directions that the same be now filed and uploaded in the **CTS**. **Petitioners’ Submissions** 1. **Mr. Mwinamo**, Counsel for the Petitioners, in summary, submitted that although **Section 193A** of the **Criminal Procedure Code** allows civil and criminal proceedings to run concurrently, it does not permit abuse or oppression. According to him, the investigations against the Petitioners are speculative, unsupported by forensic evidence, and intended to intimidate, rather than to serve, the administration of justice. He also contended that, in compliance with procedural requirements, and the standards of pleading set out in the well-known case of **Annarita Karimi Njeru v Attorney General [1979] eKLR**, the Petitioners have sufficiently disclosed the parties to the infringement or violations, the nature of rights and freedoms infringed, and the particulars of injury. He also urged that the Petitioners have met the burden of proof as stipulated under **Section 107** of the **Evidence Act**, that the Petitioners acted strictly in professional capacity, that criminalizing attestation without evidence undermines Advocate-Client privilege and independence of the Bar, and that allowing investigations to re-open the probate matters erodes confidence in the justice system. He argued further that although this matter is one where criminal proceedings have not been commenced, it is one where the risk of criminal proceedings hangs over the heads of the Petitioners, and he then prayed that the Petition be allowed with costs. Counsel also cited several authorities in support of her various limbs of Submissions. **1st Respondent’s Submissions** 1. **Prosecution Counsel Ms. Muriithi**, for the 1st Respondent (**DPP**) on her part, set out the roles and mandate of the 1st Respondent (prosecutorial and the **National Police Service** (investigatory and factfinding) in the criminal justice system, as set out in the Constitution and relevant statutes. She pointed out that, in accordance the law, once the 2nd and 3rd Respondents, upon conclusion of their investigations, shall forward their investigations file to the 1st Respondent who is vested with the mandate to make the decision whether to charge or not, based on an independent review thereof. She restated that the 1st Respondent is an independent constitutional office, and as set out in **Article 157(10)**, is not subject to the control of any person or authority, and its actions can only be challenged on the grounds of illegality, irrationality and procedural impropriety. According to Counsel, the Petition does not disclose a case against the 1st Respondent since investigations have not been concluded and no recommendations have been made to the 1st Respondent to charge, and that therefore the Petition is speculative, the apprehension unfounded, and the outcome of the investigations cannot be pre-empted by the Petitioners or by this Court. She also appreciated that **Section 134(1)** of the **Evidence Act** recognizes the principle Advocate-Client privilege but averred that as also recognized in the same provision, such privilege is not absolute where such communication was made in furtherance of an illegal purpose or where the Advocate discovers, in the course of his employment, facts showing that a crime or fraud has been committed. 2. She submitted further that should the investigations culminate in the arrest and arraignment of the Petitioners, their right to liberty will not be curtailed as the Constitution provides for release on reasonable bail or bond, and that the Petitioners have not demonstrated that they will not get a fair hearing as enshrined under **Article 50** of the **Constitution**. Regarding the Petitioners’ questioning of the “undisclosed” evidence gathered, Counsel responded that the Petition is not a trial whereby the 1st Respondent would be required to furnish the Court with all the evidence they intend to rely on, and that therefore, the Petition is framed with the ill-intention of inviting the Court to usurp the constitutional and statutory powers of the 1st Respondent, which powers the Court should not interfere with. She submitted further that the allegation that the Succession proceedings went on smoothly with no objection being raised does not negate the possibility of the existence of criminal element as to how the Will was drafted. In the end, Counsel contended that the Petitioners have not demonstrated how their constitutional rights have been violated as required under the **Annarita Karimi** case (**supra**) standards. She, too, cited several authorities in support of her various limbs of Submissions. **2nd, 3rd and 4th Respondent’s joint Submissions** 1. **State Counsel Ms. W. Cheruiyot**, for the 2nd, 3rd and 4th Respondent (**DPP**) on her part, submitted that the Petitioners have made mere allegations, and she, too, asserted that the Respondents are independent constitutional bodies vested with the mandate of investigating and recommending charges to the 1st Respondent as stipulated under the Constitution and the **National Police Service Act**. She contended further that the investigations were properly initiated as a complaint was received and ***prima facie*** evidence was found, and that it is worth noting that the only contact that the 2nd and 3rd Respondents have had with the Petitioners is a phone-call inviting the Petitioners to attend their offices for the purpose of shedding light on the complaint. Counsel urged that the Petitioners have not demonstrated that any party was given preferential treatment to their disadvantage, and wondered how a mere phone call can be alleged to have stripped or violated the dignity of the Petitioners or their privacy, and termed the allegations of violation as premature. She refuted the allusion that the Petitioners were being prosecuted because of being Advocates, and contended that in any event, the mere fact that they are Advocates does not exonerate them from criminal culpability and that the law applies indiscriminately. Counsel urged further that there is no reason why the Petitioners should not appear before the 2nd and 3rd Respondents and respond to the allegations made against them, and contended that although investigations may cause an inconvenience and at times even embarrassing, it is not the business of the Court to shield one from the shame that comes with investigations. She reiterated that the Court does not have prosecutorial powers and cannot unnecessarily usurp the powers of the 1st Respondent or direct it in any manner unless where the 1st Respondent has violated the law, and stressed that in this case, the investigations are still ongoing. She, too, also cited several authorities in support of her various limbs of Submissions, and prayed that the Petition be dismissed. **Determination** 1. The issue that calls for determination in this matter is **“whether this Court should stop the ongoing criminal investigations and/or any consequent proceedings arising therefrom against the Petitioners, practicing Advocates, touching on the authenticity of the testamentary Will drafted by, or whose drafting involved the Petitioners, on the ground that such investigations infringe, or violate the Petitioners’ constitutional rights.”** 2. On whether the Petition meets the threshold of a Constitutional Petition, the case of **Anarita Karimi Njeru v Republic [1979**] **eKLR** and re-affirmed in **Kiambu County Tenants Welfare V Attorney General & Another [2017] eKLR**, and also **Mumo Matemo -vs- Trusted Society of Human Rights Alliance & 5 others (2013) eKLR**, a Petitioner should set out with a reasonable degree of precision the provisions alleged to be infringed and the manner, nature and extent in and to which they are alleged to be infringed. Having carefully perused the Petition herein, I am satisfied that it does sufficiently set out with a reasonable degree of precision that of which he complains, the provisions said to be infringed and the manner in which they are alleged to be infringed. 3. In answering the said issue, I will start by restating that the 3rd Respondent, the **National Police Service (NPS)** is established under **Article 243** of the **Constitution**, while the office of the **Inspector-General of the National Police Service** which is the office that holds the command, superintendence, and direction over the **NPS**, isestablished under **Article 245(1)**. The **Inspector-General of the National Police Service** isan independent office with the power to investigate any offence in Kenya and in respect thereto, **Article 245(4)** provides as follows: **“(4) 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; or** **(c) …………………………………………….”.** 1. On the part of the **National Police Service Act, Cap. 84,** **Section 24** then outlines its functions to include; (a) **provision of assistance to the public when in need; (b) maintenance of law and order; (c) preservation of peace; (d) protection of life and property; (e) investigation of crimes; (f) collection of criminal intelligence; (g) prevention and detection of crime; (h) apprehension of offenders; (i) enforcement of all laws and regulations with which it is charged; and, (j) performance of any other duties that may be prescribed by the Inspector-General under this Act or any other written law from time to time.** 2. On the other hand, the **Directorate of Criminal Investigations (DCI)** is the specialized branch of the **NPS** tasked with gathering criminal intelligence and investigating complex or serious crimes. 3. On its part, the officeof the **Director of Public Prosecutions** (**DPP**) is established under **Article 157** of the **Constitution** and its mandate is provided in sub-articles **(4), (6), (10)** and **(11)** as follows: **“(4) The Director of Public Prosecutions shall have power to direct the Inspector-General of the National Police Service to investigate any information or allegation of criminal conduct and the Inspector-General shall comply with any such direction.** **(5) …………………………………………………………………………………..** **(6) The Director of Public Prosecutions shall exercise State powers of prosecution and may—** **(a) institute and undertake criminal proceedings against any person before any Court (other than a Court martial) in respect of any offence alleged to have been committed;** **……………………………………………………..** **(10) The Director of Public Prosecutions shall not require the consent of any person or authority for the commencement of criminal proceedings and in the exercise of his or her powers or functions, shall not be under the direction or control of any person or authority.** **(11) In exercising the powers conferred by this Article, the Director of Public Prosecutions 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.”** 1. From the foregoing, it is clear that the Respondents are not subject to the control of any person or authority in the exercise of their mandate as conferred by the **Constitution** except in the manner set out therein. Nonetheless, in the exercise of those powers, the discretion must be exercised in accordance with the law. Where the said agencies are demonstrated to have overstepped their mandate by misusing their powers, the High Court is empowered to, and should intervene. Abuse of such discretionary powers would include, for instance, the employment of extraneous factors to achieve ulterior goals separate from ends of justice. On this point, I cite the case of **Kuria -vs- Attorney General [2002]*,*** in which the Court stated as follows: **"The court has power and indeed the duty to prohibit the continuation of the criminal prosecution if extraneous matters divorced from the goals of justice guide their instigation. It is the duty of the court to ensure that its process does not degenerate into tools for personal score-settling or vilification on issues not pertaining to that which the system was even formed to perform ........... a stay (by an order of prohibition) should be granted where** **compelling an accused to stand trial would violate the fundamental principles which underlie the society's sense of fair play and decency and/or where the proceedings are oppressive or vexatious .............."** 1. Similarly, in the case of **Joram Mwenda Guantai vs. The Chief Magistrate, Nairobi Civil Appeal No. 228 of 2003 [2007] 2 EA 170**, the Court of Appeal held that: **“……… the High Court has inherent jurisdiction to grant an order of prohibition to a person charged before a subordinate court and considers himself to be a victim of oppression. If the prosecution amounts to an abuse of the process of the court and is oppressive and vexatious, the Judge has the power to intervene and the High Court has an inherent power and the duty to secure fair treatment for all persons who are brought before the court or to a subordinate court and to prevent an abuse of the process of the court.”** 1. In regard to prosecution of criminal cases, although the mandate thereon rests with the **DPP** as enshrined under **Article 157** of the **Constitution**, the **DPP**, in exercising this mandate, is required to review and determine the “***prosecutability***” of cases forwarded for his action. As aforesaid, the **DPP** is under obligation to exercise this discretion judiciously. The procedure is that prosecution is preceded by an investigation which tackles the question whether there was an offence committed, and the **Constitution** and the **National Police Service Act** then gives the Police the mandate to conduct such investigations. On this aspect, I refer to the following remarks made by **Warsame J (as he then was)** in the case of **Republic vs. Commissioner of Police and Another ex-parte Michael Monari & Another [2012] eKLR**: **“The Police have a duty to investigate 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. The predominant reason for the institution of the criminal case cannot therefore be said to have been the vindication of the criminal justice.** **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.”** 1. **Majanja J**, inthe case of **Douglas Maina Mwangi vs. KRA & Another, 213 eKLR**, also addressed the same issue in the follow manner: **“15. The office of the Director of Public Prosecution under Article 157 of the Constitution is an independent office under the Constitution like its predecessor office, the office of the Attorney General under section 26 of the former Constitution. When dealing with the decision as to whether or not to prosecute, the office exercises independent judgment and this court cannot interfere unless it is shown that the exercise is contrary to the Constitution, in bad faith or amounts to an abuse of process. This has been the holding of this court in several decided cases ………”** 1. As already stated therefore, this Court possesses the Constitutional mandate and power to stop any criminal investigation or prosecution which has been demonstrated to have been preferred maliciously, with ulterior or selfish reasons. That is not in doubt. However, in exercising that power, the Court must also be cautious and careful not to overstep or exceed its mandate by usurping or unduly interfering with the prosecutorial powers of the **DPP** similarly donated by the same **Constitution**. 2. On the need for such caution, I again refer to the following statement made by **Warsame J (as he then was)** in the case of **Republic vs. Commissioner of Police and Another ex-parte Michael Monari (supra)**: **“Under Article 157(4) of the Constitution, the Director shall have power to direct police to investigate any information or allegation of a criminal conduct and it is mandatory for the police to comply with any directions or instructions given by the Director of Public Prosecution. Under article 157(10) the Director of Public Prosecution shall not require the consent of any person or authority for commencement of criminal proceedings and shall not be under the direction or control of any person. ………...** **It is not the duty of the court to go into the merits and demerits of any intended charges to be preferred against any party. It is the function of the court before which the charge shall be placed and which shall conduct the intended trial to determine the veracity and the merit of any evidence to be tendered against an accused person. It would be improper for this court to try and/or attempt to determine the intended criminal case which is not before it. There is no evidence to show that the respondents exceeded jurisdiction, breached rules of natural justice or considered extraneous matters or were actuated by malice in undertaking the investigations against the applicants. The purpose of criminal proceedings is to hear and determine finally whether the accused has engaged in conduct which amounts to an offence and on that account is deserving punishment.”** 1. In affirming the need for Courts to exercise caution where the manner of exercise of prosecutorial discretion by the **DPP** has been questioned, the Court of Appeal in the case of **Diamond Hasham Lalji & another v Attorney General & 4 others [2018] eKLR**, also stated as follows: **“[41] Thus, the exercise of prosecutorial discretion enjoys some measure of judicial deference and as numerous authorities establish, the Courts will interfere with the exercise of discretion sparingly and in the exceptional and clearest of cases. However, as the Privy Council said in Mohit v Director of Public Prosecutions of** ***Mauritius [2006] 5LRC 234***: **“these factors necessarily mean that the threshold of a successful challenge is a high one. It is however one thing to conclude that the Courts must be sparing in their grant of relief to seek to challenge the DPP’s decision to prosecute or to discontinue a prosecution, and quite another to hold that such decisions are immune from any such review at all ……..”** 1. What is therefore apparent is that the burden of proof rests with the person alleging unconstitutional exercise by the **DPP** of prosecutorial power, but if sufficient evidence is adduced to establish a breach, then the evidential burden shifts to the **DPP** to justify the prosecutorial decision. 2. **Regarding Advocates legitimately and lawfully performing their duties as such, Kenyan Courts have on many occasions strongly come out to protect them from police harassment and malicious prosecution, although this protection is granted on a case-by-case basis, and can never be interpreted to mean a blanket immunity.** This is, in part, because of the appreciation that a Lawyer’s work, just like that of a Judicial Officer, by its nature, possesses the real potential of “stepping on the toes” of many, whether intended or intended, and thereby attract hate and hostility against them. It may, at times be risky and dangerous and may offend others, particularly, in cases where “big money” or political interests are involved. It may therefore, at times, require serious courage and fearlessness for a Lawyer to adequately represent some clients. As such, cases of Lawyers being the targets of harassment, intimidation, influence and even violence abound. While therefore Courts have correctly, explicitly, swiftly rejected attempts to shield all lawyers under a broad umbrella of absolute professional immunity, they have routinely intervened to quash malicious charges or even investigations aimed at harassing, or intimidating Lawyers for carrying out their legitimate duties. Courts therefore have to strictly balance Advocate protection with public accountability and equal application of the law under **Article 27** of the **Constitution**. The Courts have, however, on many occasions also affirmed that under the **Evidence Act**, Advocate-client privilege cannot be used to shield potential misconduct or communications made in furtherance of an illegal purpose, fraud, or crime. 3. The above principles have been restated in many cases, including for instance, by **On’gudi J (as she then was)** in the case of **Choithram & another v Chief Magistrates’ Court at Milimani & 2 others (Petition E184 of 2021) [2023] KEHC 22359**, and also by **Korir J (as he then was)** in the case of [**Tom Odhiambo Ojienda SC v Director of Public Prosecutions & 3 others**](https://kenyalaw.org/akn/ke/judgment/kehc/2020/2686)**(2020) eKLR**. ##### Similarly, in various Court decisions, such as by **Mabeya J** in [**Republic v Director of Public Prosecutions & 4 others; Ex-Parte Ashford Gerrard Riungu [2020] KEHC 3126 (KLR)**, the Courts](https://kenyalaw.org/akn/ke/judgment/kehc/2020/3126/eng%402020-09-24) have also pronounced that they will, without hesitation, stop a prosecution or criminal investigations if it is proved to be “actuated by malice” and/or “against public interest”. This is because Advocates must not be harassed or forced through a criminal trial or even investigations for simply “doing an honest job” in the line of their duty. The Courts must at all times protect an Advocate’s right to represent his clients without being subjected to harassment by the police or coerced to breach the duty of confidentiality owed to his clients, a right which is expressly protected under **Section 134** of the[**Evidence Act**](https://new.kenyalaw.org/akn/ke/act/1963/46). 1. The Courts have therefore regularly protected Advocates who have been wrongfully charged with fraud or forgery for merely witnessing or attesting to documents presented to them by clients. The basis thereof is that an Advocate should not be treated as an accomplice unless concrete evidence of criminal intent exists. Indeed, the “**United Nations Basic Principles on the Role of Lawyers”** stipulates that Lawyers must not suffer or be threatened with prosecution for actions taken in accordance with recognized professional ethics. The Courts will therefore always frown against the use of intimidation against Advocates who are simply performing their professional functions as Advocates. Of course, no such protection will be extended to criminals who happen to be Advocates, or Advocates directly involved in fraudulent transactions. 2. It is due to the inherent risk that characterizes the work of an Advocate that the law has prescribed ways to ensure that they are protected. That is the rationale behind the enactment of the “**United Nations Basic Principles on the Role of Lawyers”** as referred to above, which principles must be interpreted as forming part of the Kenya law by dint of **Article 2(5)** and **(6)** of [the **Constitution**](https://new.kenyalaw.org/akn/ke/act/2010/constitution). **Principle 16** of the **“Basic Principles”** cited above provides that “***Governments shall ensure that lawyers (a) are able to perform all of their professional functions without intimidation, hindrance, harassment or improper interference***; ***(b) are able to travel and to consult with their clients freely both within their own country and abroad; and (c) shall not suffer, or be threatened with, prosecution or administrative, economic or other sanctions for any action taken in accordance with recognized professional duties, standards and ethics.”*** **Principle 18** also provides that: “***Lawyers shall not be identified with their clients or their clients’ causes as a result of discharging their functions***”. 3. In affirming the above, **L. N. Mugambi J**, in the case of Law **Society of Kenya v Director of Public Prosecutions & 4 others [2025] KEHC 11980 (KLR)** stated that “***where there is no legal justification for charging of an Advocate, the Court must intervene and stop the unjustified persecution of the Advocate for doing his professional duties***”. He then quoted the decision of **Mumbi Ngugi J** **(as she then was**), in the case of **Richard Malebe v Director of Public Prosecutions & 2 others [2020] KEHC 5413 (KLR)** in which the **DPP** was stopped from prosecuting an Advocate who had merely been retained to register a Company that was later investigated for commission of an offence. In that case, **Mumbi Ngugi J** **(as she then was**), stated that: ***169. I agree with the DPP that Advocates, like all other professionals, do not have a special immunity if they commit, in the course of their professional duties, acts which are criminal in nature. There is a danger, however, that in circumstances such as are before me, a zealous prosecutor may cast his net too wide and catch even those, like the petitioner, who only performed the basic professional function of facilitating the local registration of one of the companies that allegedly was involved in the dams scandal. Had the petitioner indeed been disclosed in the statutory forms as a director and local representative of the said company, or had there been other evidence such as account opening forms which demonstrated that he was indeed a director or local representative of the companies involved, this court would have had no hesitation in saying that the DPP has a factual foundation, has a prima facie case, that should be left to the trial court.*** ***170. However, in the circumstances of this case, and bearing in mind the Basic Principles on the Role of Lawyers relied on by the petitioner, I take the view that the DPP, in seeking to prosecute the petitioner, is identifying the petitioner with the acts allegedly committed by the company that he had, several years prior to the perpetration of the alleged offences, participated in the local registration of, and was indicated as the ‘authorised person’ for purposes of service of process ...........”*** 1. In this case, Police Corporal **Patrick Kuloba** asserts that his office received a letter dated 4/12/2024 from a firm known as **Glascote Rose** requesting them to conduct investigations in respect to the Will of the late **David Kiptoo Cheluget** dated 1/07/2022 on allegations that the Will is a forgery. He states that the major reasons given for the allegation of forgery was that the signature thereon is different from the one the deceased had been using, and that due to the development of eye-vision challenges, the deceased had since about the year 2020 been signing documents by way of affixing a thumb-print. He deponed that on a cursory look at the alleged samples of signatures of the deceased, he noted a discrepancy in the signatures, and intended to subject the documents to forensic analysis, but that before then, he needed to hear from the Petitioners to enable him make an informed decision on the way forward. 2. On the face of it, the above explanation, no doubt, sounds reasonable and acceptable. 3. I however note, as alluded by the Petitioners and demonstrated by the exhibited annexures, that the deceased having died on 15/06/2024, and reportedly having appointed in the Will, **Hellen Chepkoech Cheluget**, **Geoffrey Kipkemboi Rono** and **John Kibiy Koskei** as executors of his estate, such executors, to give effect to the appointment, then filed **Eldoret High Court Probate and Administration Cause No. E111 of 2024**, in which the Petition was advertised in the Kenya Gazette, the Grant of Probate issued to the executors and subsequently confirmed on 7/02/2025. The Petitioners’ contention that to date, no person has filed any application in that Probate Cause contesting or challenging the authenticity or validity of the Will, its contents, or the manner in which it was executed, has not been controverted, and indeed, has not been responded to by any of the Respondents. **Police Corporal Kuloba** however confirms that he was, at all times, even as he was opening the investigations, fully aware of the existence of the Probate Cause in Court and its status. 4. The above state of affairs lends credence to the Petitioners’ contention that the complainant, by lodging a complaint with the 1st and 3rd Respondents challenging the validity of the Will without first contesting the same before the Probate Court in **Eldoret High Court Probate and Administration Cause No. E1l1 of 2024**, aforesaid, is seeking to gain a collateral or unfair advantage in his potential future applications in the Probate matter. As validly claimed by the Petitioners, unless very clearly explained, the above may be construed as being an attempt to instigate harassment of the Petitioners, which conduct, if true, would indeed, as alleged by the Petitioners, amount to, not only an abuse of the legal process but also undermining the integrity of the Probate proceedings. 5. The questions raised against the authenticity of the Will may or may not be valid afterall, but why would the complainants, assuming they have the necessary ***locus***, not want to first move the Probate Court and ask it to revisit the matter case by reviewing the authenticity of the Will it was allegedly “misled” into adopting? If indeed there is “***discovery of new and important evidence***” as alleged, why is that “***discovery***” not being taken to the existing Probate Court case for determination? Succession Causes, as it is normally joked about, never come to an end in Kenya, as new claimants regularly keep springing up every now and then seeking revocation of Grants, some on genuine grounds, and some on clear frivolous basis. This is because drafters of the **Law of Succession Act**, in their wisdom, never fixed statutory timelines or limitation of actions bar on applications seeking the re-opening of Probate cases and filing of applications for revocation of Grants. 6. In this case however, there is totally no explanation offered as to why no effort whatsoever has been made to take advantage of the provisions under the **Law of Succession Act** available to move the Probate Court, which was, and still is, properly seized of the Probate case, to revoke the Grant on the ground of the “***newly discovered fraud***”. Once the Application for revocation of Grant is filed before the Probate Court, that Court has the jurisdiction and power to hear the parties and, if satisfied, to refer the Will to the 1st Respondent or any other relevant authority to investigate the matter, verify the authenticity of the signature through a hand-writing expert, and file a Report in Court on its findings. This, to me, would have been the orderly manner to handle the “***new discovery***”, since an allegation of forgery of a Will, particularly by an Advocate, is a serious matter that requires proper handling. To me, the course set out above would have been the best way to prevent the possibility of allegations or suspicion that the 1st Respondent was being used by the complainant to “***gain a collateral and unfair advantage in his potential future applications in the Probate matter***” as alleged by the Petitioners. 7. It is however important to mention that **Section 193A** of the **Criminal Procedure Code** contemplates both civil and criminal proceedings proceeding side by side without interfering with each other. It provides that: **“Concurrent criminal and civil proceedings:** **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.”** 1. In analyzing **Section 193A** above, the Court of Appeal in the case of **Commissioner of Police and Director of Criminal Investigations Department vs. Kenya Commercial Bank andOthers, Nairobi Civil Appeal No. 56 of 2012 [2013] eKLR**, stated that: **“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 the 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 administration of justice to use criminal justice process as a pawn in civil disputes. It is unconscionable and travesty of justice for the police to be involved in the settlement of what is purely dispute 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.** 1. Further, in the case of **Kuria & 3 Others vs.AG(2002) 2 KLR**, the following was stated: **“........ The normal procedure in the co-existence of civil and criminal proceedings is to stay the civil proceedings pending the determination of the criminal case as the determination of civil rights and obligations are not the subject of a criminal prosecution ….... A prerogative order should only be granted where there is an abuse of the process of the law, which will have the effect of stopping the prosecution already commenced. There should be concrete grounds for supposing that the continued prosecution of criminal case manifests an abuse of the judicial procedure, much that the public interest would be best served by the staying of the prosecution** ........ **It is not enough to state that because there is an existence of a civil dispute or suit, the entire criminal proceedings commenced based on the same set of facts are an abuse of the court process. There is a need to show how the process of the court is being abused or misused and a need to indicate or show the basis upon which the rights of the Applicant are under serious threat of being undermined by the criminal prosecution*.*** **In the absence of concrete grounds ….... it is not mechanical enough that the existence of a civil suit precluded the institution of criminal proceedings based on the same set of facts. The effect of criminal prosecution on an accused person is adverse but so also are their purpose in the society, which are immense …... an order of prohibition cannot also be given without any evidence that there is manipulation,** **abuse or misuse of court process or that there is a danger to the right of the accused person to have a fair trial. (emphasis added).** 1. Similarly, in the case of **Amir Lodges Ltd & another v Mohammed Omar Shariff & another [2022] eKLR, Mrima J** stated as follows: **“43. From the discussions in the superior Courts decisions and the other comparative decisions from foreign jurisdictions, the rule of the thumb in respect of concurrent criminal and civil proceedings based on similar set of facts and circumstances is that the criminal case ought to proceed unless it can be demonstrated that the prosecution of the criminal case** **will either result to infringement of the rights and fundamental freedoms of the accused persons or will lead to the contravention of the Constitution.** **44. In agreeing with the above position, I will attempt two practical assumptions based on the facts in this matter. The assumptions are on terminating the investigations or staying the civil case in favour of the investigations.** **.................................................................................................................** **49. From the two scenarios, there is, therefore, logic in the general position that where there are concurrent criminal and civil cases based on similar facts and circumstances, the criminal case or investigations ought to be first dealt with.** **50. Having said so, it remains clear in the mind of this Court that the foregoing general position is subject to exceptions including whether** **the criminal case infringes the rights and fundamental freedoms of the accused or is in contravention of the Constitution.** **51. This Court, therefore, finds and hold that** **a Court cannot terminate a criminal case or criminal investigations solely on the basis of a pending civil case based on similar facts and circumstances.** **52. For a Court to so halt a criminal case or investigations, there must be more to the pendency of a civil claim. In this case, the Petitioners attempted to demonstrate how the investigations will prejudice the civil case and infringe their right to fair trial. However, from the foregoing analysis, this Court is unable to agree with the Petitioners. I say so because the Petitioner’s claim is largely based on the fact that they filed a civil claim. The allegations of impropriety on the part of the Respondents remain too remote, if any.** **53. In the end, this Court is persuaded that the Petitioners have not demonstrated any prima facie case at the moment. The position may, however, change at the main hearing of the Petition.”** 1. **Section 193A** therefore explicitly provides that the existence of a civil case does not create a ground for delaying the concurrent criminal case. The logic behind the provision is to prevent litigants from using civil proceedings to obstruct or delay criminal justice. The provision therefore ensures that criminal cases are dealt with without delay or frustrations brought about by Court orders issued on the pretext of existence of civil disputes on the same facts. It is however also not in doubt, as is apparent from the authorities cited above, that in spite of the provisions of **Section 193A**, in appropriate cases, the High Court can still stop a criminal prosecution or even criminal investigations, where the issues involved are matters that are civil in nature. However, a Court will not terminate a criminal case or investigations solely on the basis of a civil dispute being based on similar facts and circumstances. It must still be clearly demonstrated that the criminal case or investigations infringes the rights and fundamental freedoms of the accused or is in contravention of the Constitution. 2. Applying the principles laid down in the various authorities cited above, the Probate Cause was instituted in the year 2024, and the Grant issued therein was, as aforesaid, confirmed on 7/02/2025. On its part, the complaint alleging forgery of the Will was lodged on 4/12/2024. By the time that the complaint was being lodged at the 1st Respondent therefore, the Probate Cause was actively before the Probate Court properly seized of the Succession Cause. There is therefore no reason why the same “dossier” would not have been brought to the attention of the Probate Court for determination. 3. It is true that each case must be determined on its own facts and peculiar circumstances, and thus the fact that there are parallel or concurrent civil and criminal cases or investigations based on the same facts proceeding side by side may, in one instance, lead to stoppage of one case or investigations in favour of the other, while in another instance, the cases or investigations may be allowed to proceed side by side, concurrently. As aforesaid, each case on its own facts. In this case, considering the matters that I have set out above, coupled with the Petitioners’ claim that the criminal case is intended to grant the complainant “***a collateral and unfair advantage in his potential future applications in the Probate matter***”, I am afraid I am not satisfied that allowing the criminal investigations to continue without any reasons being given as to why no effort was made to lodge the same complaint, or file any application, in the existing Probate Court case will be the correct thing to do. The Respondents have done very little, if at all, to counter the Petitioners’ claims that the investigations are being carried out in bad faith, and to simply embarrass and humiliate them. 4. I am not, and cannot say or declare that the Petitioners are not guilty, that will be determined by the Probate Court should the complaint be taken there, or by the criminal Court should the matter eventually reach there. What I am saying is that even if the Petitioners were to eventually be found culpable and/or liable to be charged for criminal offences, let them be found to be so after a fair investigations and even fair trial, which fair trial process, as erroneously believed by many, does not commence only at the time of arraignment in Court, but must, for all intents and purposes, be expanded and interpreted to include even the pre-arraignment stage, particularly and including, the manner in which investigations are conducted, long before the police file is forwarded to the **DPP** for consideration on whether to charge or not. As it is said, “***justice must not only be done, it must also be seen to be done***”. An officious bystander observing the manner in which the complaint has been handled in this matter, I doubt, will give the process a clean bill of health. 5. In the circumstances of this case, and in spite of the provisions of **Section 193A** of the **Criminal Procedure Code**, my view is that the Respondents have failed to controvert the Petitioners’ protest that subjecting them to the criminal investigations when the Probate Court file is still available for lodging the same complaints for that Court to determine or give directions on, is still open. The Respondents have therefore, in my view, demonstrated that allowing the criminal investigations to continue in the manner in which they are being currently being conducted, which is by “short-circuiting” or “circumventing” the Probate Cause, would violate the fundamental principles which underlie the society's sense of fair play and transparency and such concurrent investigations would be oppressive and/or vexatious, besides amounting to reliance on ulterior motives and an abuse or misuse of the Court process. I am satisfied that in the circumstances of this case, allowing the two processes to proceed concurrently would pose a real danger to the Petitioners’ right to receive a fair trial should the process reach that far, and is likely to result to infringement of their rights and fundamental freedoms and/or will lead to contravention of the **Constitution**. 6. In as much as the Respondents argue that it is premature for the Petitioners to claim that no harm has been visited upon them as yet because no prosecution has been commenced, and even the 2nd Respondent’s investigations file has not yet been forwarded to the 1st Respondent for consideration on whether to approve charges and prosecution, what the Respondents fail to appreciate is that the mere threat of prosecution hanging over a person’s head, causes substantial emotional distress and instability. In this case, such stress is likely to be even much more considering that they are Advocates and what they are being alluded to have done is committing the very serious offence of forging a Will, in the course of their duties as Advocates. Are the Respondents arguing that this, alone, is not capable of causing reputational damage to the Petitioners’ career as Advocates if the public and their clients get wind of the matter, particularly in respect to the 1st Petitioner who has practiced for the last 40 years? Should that happen, would it not cause financial losses to the Advocates and the law firm? This, to me, is more reason why the matter deserves to be handled with much more caution. 7. I have not been told that the Probate Court is incapable of determining, or at least, giving directions on the matters pertaining to the alleged forgery, which as aforesaid, is the same issue that the criminal investigations intend to determine. In the circumstances, I believe that the best course will be to suspend the criminal investigations to allow the concerned parties the opportunity to lodge their claims at the Probate Court should they wish to do so. It is evident that if that recourse is invoked and that Court makes determinations, then such findings or determinations will, no doubt, assist the police in making an informed decision on whether or not to continue with the criminal investigations and the manner of doing so. 8. The Courts can and will stop malicious investigations where justification exists, and do not need to wait until the formal prosecution commences. Of course, this should only be done in clear-cut cases. In standard cases, Courts will decline to halt active probes, and will let the veracity of the evidence to be tested by a trial Court rather than to be truncated mid-investigation. While therefore the general rule is that Courts must allow investigative agencies to complete their work, an aggrieved person, if he can demonstrate that the process is driven by bad faith or ulterior motives, cannot be told to wait to be dragged to Court before seeking relief from the Courts. 9. Regarding the Petitioners’ prayer for compensation by way of an award of damages for the infringement of their constitutional rights, while I agree that the process undertaken must have caused emotional distress to the Petitioners, considering that the stage of formal prosecution is yet to be reached, I am not satisfied that serious reputational damage, and/or financial losses have been visited upon them so far as a consequence, to justify an award of damages. For similar reasons, I will not also award costs. **Final Orders** 1. In conclusion, I hereby rule and/or order as follows: 2. A declaration is hereby issued that, owing to the peculiar circumstances of this case, the criminal investigations and/or prosecution of the Petitioners for any alleged offence allegedly arising from the 1st and 2nd Petitioners’ involvement, as Advocates, in the drawing and attestation of the Last Will and Testament of **David Kiptoo Cheluget (deceased)** dated 1st July 2022, as well as the 3rd Petitioner's certification of a copy of the said Will as a true copy of the original before any such or same complaint has been lodged in the existing Succession case, namely, **Eldoret High Court Probate and Administration Cause No. E1l1 of 2024**, which deals with matters pertaining to the estate of the deceased, and directions given thereon, would be unconstitutional, oppressive, an abuse of both the process of the Court and the criminal justice system, and in violation of the Petitioners' fundamental rights and freedoms. 3. An Order of Prohibition is hereby issued prohibiting the Respondents, their agents, servants, or any other person acting on their behalf from undertaking any criminal investigations of the Petitioners in relation to any alleged offence arising from the 1st and 2nd Petitioners’ involvement, as Advocates, in the drawing and attestation of the Last Will and Testament of **David Kiptoo Cheluget (deceased)** dated 1st July 2022, as well as the 3rd Petitioner's certification of a copy of the said Will as a true copy of the original before any such or same complaint has been lodged in the existing Succession Cause, namely, **Eldoret High Court Probate and Administration Cause No. E1l1 of 2024**, and directions given thereon. 4. The Petitioners’ prayer for compensation and/or damages for infringement of their constitutional rights, and/or for emotional distress, reputational damage, and financial losses is however declined. 5. I make no order on costs. **DELIVERED, DATED AND SIGNED AT ELDORET THIS 17TH DAY OF JULY 2026** **……………..……..** **WANANDA JOHN R. ANURO** **JUDGE** **Delivered in the presence of:** | | | | --- | --- | | **Mr. Mwinamo for the Petitioners** | | | **Ms. Muriithi for the State-Respondents** | | | **Ms. Kawamara for the 1st and 2nd Interested Parties** | | | **Court Assistant: Brian Kimathi** | |