https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12861

Kamau v Director of Public Prosecutions & another (Petition E020 of 2026) [2026] KEHC 12861 (KLR) (13 August 2026) (Ruling) Neutral citation: [2026] KEHC 12861 (KLR) Republic of Kenya In the High Court at Nakuru Petition E020 of 2026 JK Sergon, J August 13, 2026 IN THE MATTER OF ARTICLES 22, 23, 24, 25, 27, 28, 29, 31, 39, 47, 49, 50, AND 165 OF THE CONSTITUTION OF KENYA, 2010 AND IN THE MATTER OF THE ALLEGED CONTRAVENTION OF FUNDAMENTAL RIGHTS AND FREEDOMS UNDER ARTICLES 27, 28, 29, 31, 39, 47, 49, AND 50 OF THE CONSTITUTION OF KENYA, 2010 Between Samuel Mathenge Kamau Petitioner and The Director of Public Prosecutions 1st Respondent The Inspector General of Police 2nd Respondent Ruling 1.By way of Notice of Motion dated 10th April 2026, the Applicant seeks the following reliefs:a.Spent.b.Spent.c.That this Honorable Court be pleased to issue an Interim and/or Conservatory Order restraining the 1st Respondents their agents, servants, employees and/or representatives from arresting, arraigning in court, charging and/or prosecuting Applicant/Petitioner or otherwise instituting criminal proceedings against the Applicant/Petitioner in relation to the investment agreement dated 17th November 2021 and 16th January 2022, pending the hearing and the determination of the main petition.d.Spent.e.That this Honorable Court be pleased to issue conservatory orders restraining the Respondents herein, their agents, servants, employees and/or representatives from harassing, intimidating, persecuting, arbitrary arresting, detaining, Petitioners/Applicants in relation to the investment agreement dated 17th November 2021 and 16th January 2022, pending the hearing and determination of this Petition.f.That this Honorable Court be pleased to order that status quo be maintained to the effect that no arrest, detention, or prosecution shall be undertaken against the Petitioner in respect of the matters herein, pending the hearing and determination of the Petition.g.That this Honorable Court be pleased to grant such further or other orders as it may deem just and expedient in the circumstances for the ends of justice.h.That The costs of this application be provided for. 2.The application is supported by the Applicant's own affidavit sworn on even date. 3.The application was served upon the Respondents. Despite service, the Respondents did not file any response, nor did they appear at the hearing. The application therefore proceeds unopposed. 4.The Applicant is a director of B.V. MERSGATE LIMITED, a company engaged in horticultural farming and flower export. The dispute arises from an investment made by one Joseph Kamotho Karemeri in the Applicant's business, pursuant to agreements dated 17th November 2021 and 16th January 2022. 5.The Applicant contends that the investment was made in good faith. The complainant personally inspected the flower farm and was satisfied as to its viability. The investment funds were deployed in the business. However, the business was severely affected by two global crises: the COVID-19 pandemic, which disrupted international flower markets, reduced demand, and increased logistical costs; and the Russia-Ukraine war, which resulted in the loss of key export markets, increased input costs, and disrupted international payment systems.The Applicant maintains that these events frustrated the contract, rendering performance commercially impracticable. Despite the losses, the Applicant has made partial repayments totaling Kshs. 450,000/= and has demonstrated willingness to settle the outstanding balance. 6.The Applicant is apprehensive that the Respondents, through the Directorate of Criminal Investigations, have threatened to arrest and charge him with the offence of obtaining money by false pretenses. He contends that the dispute is purely civil and contractual, and that the criminal process is being invoked improperly to enforce a civil debt. The Applicant claims that the threatened arrest and prosecution violate his constitutional rights. 7.The sole issue for determination therefore is whether the Applicant has met the threshold for the grant of the conservatory orders sought. 8.Article 23(3)(c) of the Constitution empowers this Court to grant conservatory orders. The principles for granting such orders were authoritatively laid down by the Supreme Court in Gatirau Peter Munya v Dickson Mwenda Kithinji & 2 Others [2014] eKLR. The Supreme Court distinguished conservatory orders from other interlocutory reliefs and stated as follows:“Conservatory orders bare a more decided public-law connotation: for they are orders to facilitate orderly functioning within public agencies, as well as to uphold the adjudicatory authority of the Court in the public interest. Conservatory orders, therefore, are not, unlike interlocutory injunctions, linked to such private-party issues like 'the prospects of irreparable harm' occurring during the pendency of a case; or 'high probability of success' in the applicant's case for orders of stay. Conservatory orders ought to be granted on the inherent merit of a case, bearing in mind the public interest, the constitutional values, and the proportionate magnitudes, and priority levels attributable to the relevant causes." 9.The principles for the grant of conservatory orders have been further refined in subsequent decisions. The Court must consider whether the Applicant has demonstrated an arguable or prima facie case, whether the Petition will be rendered nugatory if the orders are not granted, and the balance of convenience and public interest. 10.I have carefully considered the Applicant's application and the supporting affidavit. I have also considered the fact that this application is unopposed. However, I must emphasize that the fact that the application is unopposed does not automatically entitle the Applicant to the orders sought. The Court must still satisfy itself that the Applicant has met the legal threshold. 11.The Court of Appeal in Mrao Ltd v First American Bank of Kenya Ltd & 2 Others [2003] KECA 175 (KLR) defined a prima facie case. The Court held:“A prima facie case in a civil application included but was not confined to a 'genuine and arguable case.' It is a case which, on the material presented to the court, a tribunal properly directing itself would conclude that there existed a right which had apparently been infringed by the opposite party as to call for an explanation or rebuttal from the latter." 12.The Applicant has presented the following evidence: the investment agreements dated 17th November 2021 and 16th January 2022; evidence of the legitimate flower farming and export business; evidence of the COVID-19 pandemic and Russia-Ukraine war disruptions; evidence of partial repayments totaling Kshs. 450,000/=; and evidence of threats of arrest from a DCI officer.The Applicant argues that the dispute is purely civil and that the criminal process is being abused. However, I am not persuaded that the Applicant has established a prima facie case. Firstly, the offence of obtaining money by false pretenses under Section 313 of the Penal Code requires proof of fraudulent intent at the time of obtaining the money. Whether the Applicant had fraudulent intent is a matter for criminal trial, not a constitutional petition. The criminal justice system is the appropriate forum to determine issues of fraud and dishonesty. Secondly, the fact that the dispute has a commercial element does not automatically render it a civil matter. Criminal offences can and do arise from commercial transactions. The issue is whether there is an arguable case for fraud. The Applicant has not demonstrated that the prosecution is brought in bad faith, malice, or is otherwise an abuse of process. Thirdly, as held in Republic v Director of Public Prosecutions & Another Ex Parte Chamanlal Vrajlal Kamani & 2 Others [2015] eKLR, the High Court should not interfere with the exercise of the DPP's prosecutorial powers unless there is evidence of bad faith, malice, or an abuse of process. The Applicant has not presented any evidence of bad faith on the part of the Respondents beyond the mere assertion that the dispute is civil. Fourthly, the Applicant admits that the business failed and that he has only made partial repayments of Kshs. 450,000/=. The complainant has a legitimate grievance that his investment has not been returned. Whether the Applicant is criminally liable is a matter for the criminal trial. I find that the Applicant has not established a prima facie case. The mere assertion that the dispute is civil is not sufficient to warrant the intervention of this Court. 13.The Applicant contends that if arrested and prosecuted, he will suffer loss of liberty, damage to reputation, and disruption of business operations. However, the criminal justice system has safeguards to protect the rights of accused persons, including the presumption of innocence under Article 50(2)(a), the right to be released on bail under Article 49(1)(h), the right to a fair hearing under Article 50, and the right to challenge the prosecution through judicial review. The fact that the Applicant may face arrest and prosecution does not, by itself, constitute irreparable harm. The Applicant can apply for bail if arrested, and can challenge the prosecution through judicial review. The harm alleged is not irreparable. I find that the Applicant has not demonstrated irreparable harm. 14.The Applicant contends that if arrested and prosecuted, the Petition will be rendered nugatory. However, the Applicant can raise the same constitutional issues in the criminal trial as a defence or through judicial review proceedings. The Petition is not the only avenue for the Applicant to challenge the prosecution. I find that the Petition will not be rendered nugatory if the orders are not granted. 15.The public interest lies in ensuring that criminal investigations and prosecutions are not unduly interfered with. The Director of Public Prosecution has constitutional authority to prosecute criminal offences under Article 157 of the Constitution. Interfering with the DPP's prosecutorial powers at an early stage would set a dangerous precedent and invite similar applications in every commercial dispute. The balance of convenience lies in allowing the criminal justice process to proceed. I therefore find that the balance of convenience tilts in favour of the Respondents. 16.I have also considered the nature of the dispute. The Applicant has presented a narrative of good faith business dealings frustrated by external events. However, the question of whether the Applicant had fraudulent intent at the time of obtaining the investment is a factual question that can only be determined in a criminal trial. This court, in its constitutional jurisdiction, should not usurp the function of the trial court by making findings of fact on matters that are contested. The Applicant has not demonstrated a constitutional issue that requires the intervention of this Court. The dispute, at its core, is a contractual dispute that can be resolved through civil or criminal processes. The Applicant has not shown that the criminal process is being used oppressively or in bad faith. I find that the Applicant has not met the threshold for the grant of conservatory orders. 17.Accordingly, the Notice of Motion dated 10th April 2026 is dismissed in its entirety with no orders as to costs. DATED, SIGNED, AND DELIVERED AT NAKURU THIS 13TH DAY OF AUGUST, 2026.J. K.SERGONJUDGEIn the presence of:Ruto C/AMwashi for PetitionerN/A for the Respondent