https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12581

Karanja & 2 others v Attorney-General & another (Miscellaneous Criminal Application E003 of 2026) [2026] KEHC 12581 (KLR) (16 July 2026) (Ruling) Neutral citation: [2026] KEHC 12581 (KLR) Republic of Kenya In the High Court at Kiambu Miscellaneous Criminal Application E003 of 2026 B Mwamuye, J July 16, 2026 Between William Muigai Karanja 1st Applicant Kenneth Ndichu Karanja 2nd Applicant James Gikami Karanja 3rd Applicant and The Hon. Attorney-General 1st Respondent The Inspector General of Police 2nd Respondent Ruling (On the Originating Notice of Motion dated 19th January 2026) Introduction 1.Before this Court for determination is the Applicants' Originating Notice of Motion dated 19th January 2026, supported by the affidavit of William Muigai Karanja sworn on the same date. The application is brought in anticipation of intended criminal proceedings arising from investigations being undertaken by the Respondents and principally seeks the intervention of this Court by way of anticipatory bail and related orders. The Applicants contend that there exists a threat to their liberty and constitutional rights arising from the intended investigations and possible prosecution. They consequently seek, inter alia, orders regulating the manner in which they are to present themselves for questioning and the court before which they may be arraigned, should criminal proceedings be instituted. 2.The substantive prayers sought in the Motion are as follows:-i.Spent.ii.Pending the hearing and determination of this application inter partes and/or pending any investigations and/or the bringing of any intended charge(s) against the Applicants, the Applicants be admitted to anticipatory bail or bond forthwith.iii.In the event that the Applicants are required for questioning or investigations by the Respondents or for arraignment before a court of law, they be questioned at the Directorate of Criminal Investigations Headquarters at Kiambu in the presence of their advocates and be arraigned before the Chief Magistrate's Court at Kiambu.iv.Summons do issue forthwith to the Respondents personally to show cause in the event that the orders of this Court are disobeyed in respect of the Applicants.v.Spent.vi.Costs of the application.vii.Such further or other orders as this Court may deem fit and just to grant. The Applicants’ Case 3.The Applicants' case is founded on the affidavit of William Muigai Karanja sworn on 19th January 2026, the Supplementary Affidavit sworn on 24th March 2026, and the written submissions dated 26th March 2026. 4.The Applicants contend that they are administrators and beneficiaries of the Estate of Walter Karanja Muigai (Deceased), the registered proprietor of Land Reference No. 10090/23 situated at Juja, Kiambu County. They aver that the ownership of the said property has been the subject of prolonged litigation, culminating in a determination by the Court of Appeal in Civil Appeal No.172 of 2010, which affirmed the estate's proprietary interest in the property, and which decision was subsequently upheld by the Supreme Court. They further contend that subsequent proceedings before the Environment and Land Court similarly affirmed that no further claim could properly be sustained against the estate in respect of the said property. 5.The Applicants maintain that notwithstanding the aforesaid determinations, Geoffrey Kirundi Chege, Lucy Wamaitha Chege and Everton Enterprises Limited, whom they describe as persons who have no proprietary interest in the property, have continued to pursue claims over the suit property. They contend that the complaint lodged with the Directorate of Criminal Investigations is founded on the same ownership dispute which, in their view, has already been conclusively determined by the superior courts. 6.It is the Applicants' position that the criminal investigations commenced by the Respondents constitute an abuse and misuse of the criminal justice process, intended to reopen matters that have already been adjudicated upon by the courts. They assert that the Directorate of Criminal Investigations has no mandate to determine questions of ownership of land or to sit on appeal over decisions rendered by superior courts. 7.The Applicants further state that Land Reference No.10090/23 has not been subdivided and rely on an official search together with the pending summons for confirmation of grant in Nairobi High Court Succession Cause No.3608 of 2003 in support of their position. They contend that the allegations contained in the complaint regarding subdivision of the property are false and misleading. 8.The Applicants deny the allegation that they failed to cooperate with the investigations. They aver that they honoured the summons issued by the Directorate of Criminal Investigations and attended before the investigating officer on several occasions, including on 6th November 2025, 28th January 2026 and 12th February 2026, in some instances accompanied by their advocates. They further state that their advocates supplied the investigating officer with copies of the relevant judicial decisions concerning the suit property. 9.The Applicants contend that, following the investigations, officers attached to the Directorate of Criminal Investigations sought to arrest them and visited their residences. They further allege that they had been followed by unknown persons prior to the filing of the present application, which caused them to apprehend that they were at risk of arrest and possible violation of their constitutional rights. 10.The Applicants assert that the Respondents' actions amount to harassment, intimidation and an abuse of statutory powers, and that the investigative process is being undertaken for purposes other than the lawful enforcement of criminal law. They contend that the intended arrest and prosecution are motivated by the complaint made by persons whom they believe have sought to frustrate the administration and distribution of the deceased's estate. 11.The Applicants therefore maintain that their rights and fundamental freedoms guaranteed under Articles 25, 27, 28, 29, 47, 49, 50 and 51 of the Constitution are under threat. They urge the Court to intervene by granting anticipatory bail and the other reliefs sought, arguing that such orders are necessary to safeguard their liberty, dignity and entitlement to due process. The Respondents’ Case 12.The Respondents opposed the application through the Replying Affidavit of No.235018 C.I. Steven Kibagendi, the Investigating Officer, and the written submissions dated 26th May 2026. 13.The Respondents’ case is that the application arises from an ongoing criminal investigation initiated following a complaint received by the County Criminal Investigations Office, Kiambu, through the Regional Directorate of Criminal Investigations, Central, on 19th May 2025. The complaint was lodged by Everton Enterprises Limited through its advocates vide a letter dated 25th April 2025 concerning alleged dealings relating to Land Reference No.10090/23 situated at Juja, Kiambu County. 14.The Respondents state that the complaint was to the effect that the complainant was the bona fide purchaser for value of the said property, having purchased it from Walter Karanja (Deceased) through an Agreement for Sale dated 26th October 1990 and a Consent to Sale of the same date. They further state that it was alleged that the property had subsequently been subdivided by the Applicants, who are administrators of the Estate of the deceased, while Nairobi High Court Succession Cause No.3608 of 2003 was still pending confirmation of grant. 15.The Respondents aver that following the complaint, Inquiry File No. 90 of 2025 was opened and investigations commenced. They state that the Applicants were summoned on 31st October 2025 to appear on 6th November 2025 for purposes of recording statements, but declined to do so and similarly failed to honour a subsequent summons issued for 19th November 2025. 16.The Respondents state that investigations proceeded and established that the allegations under inquiry had merit. They further aver that the approval documents relied upon by the Applicants in the alleged subdivision process were found to be forged, leading to a recommendation that the Applicants be charged with Forgery contrary to Section 345 of the Penal Code, uttering a False Document contrary to Section 353 of the Penal Code, and fraudulent procurement of registration contrary to Section 103(1)(c)(i) of the Land Registration Act. They state that the recommendations were considered and approved by the Director of Public Prosecutions vide a letter dated 15th January 2026. 17.The Respondents further state that following the approval to charge, the Applicants were contacted and requested to present themselves before the investigators. They aver that when the Applicants failed to appear, officers visited their homes in an attempt to effect arrest, but were unsuccessful. They state that the Applicants later appeared before the investigators in the company of their advocates and presented the orders issued by this Court on 23rd January 2026. 18.The Respondents contend that they acted within their constitutional and statutory mandate. They rely on Section 35 of the National Police Service Act and submit that the Directorate of Criminal Investigations is mandated to undertake investigations, detect and prevent crime, apprehend offenders and execute directions given by the Director of Public Prosecutions. 19.The Respondents submit that the intended charges against the Applicants are criminal in nature and are distinct from the civil proceedings relied upon by the Applicants concerning ownership of the property. They contend that the Applicants are attempting to rely on the previous civil decisions to prevent the Respondents from undertaking lawful criminal investigations relating to alleged forgery, uttering of false documents and fraudulent procurement of registration. 20.The Respondents submit that the Applicants have not demonstrated any violation of their constitutional rights. They contend that the allegations of possible abduction, torture, intimidation and unlawful treatment are speculative and unsupported by evidence. They maintain that the intended arrest was based on investigations undertaken and the recommendation by the Director of Public Prosecutions to charge the Applicants. 21.The Respondents further submit that the grant of anticipatory bail would hinder the exercise of their statutory mandate in future. They argue that the application is intended to shield the Applicants from lawful criminal prosecution and is therefore premature and an abuse of the court process. 22.The Respondents rely on the doctrine of constitutional avoidance as set out in Speaker of the National Assembly –vs- Njenga Karume [2008] 1 KLR 425, and submit that where there exists an established legal procedure for addressing a grievance, that procedure ought to be followed. They contend that the Applicants should raise any challenge to the intended charges before the trial court rather than through the present application. 23.On that basis, the Respondents urge the Court to dismiss the application, uphold the legality of the investigations and intended prosecution, lift any interim orders issued against them, and award costs in their favour. Analysis and Determination 24.I have carefully considered the Motion, the affidavits on record, the rival submissions of the parties and the applicable law. In my view, the following issues arise for determination:-i.Whether the Applicants have established a proper basis for the grant of anticipatory bail.ii.Whether the Court should direct the place of questioning and the court of arraignment.iii.Whether summons should issue against the Respondents i) Whether the Applicants have established a proper basis for the grant of anticipatory bail. 25.The Constitution does not expressly provide for anticipatory bail. The jurisdiction of this Court to grant such relief is nevertheless derived from Articles 23(3), 29 and 165(3) of the Constitution, which empower the High Court to grant appropriate relief where a violation or threatened violation of the Bill of Rights has been established. The remedy is therefore a constitutional one, intended to safeguard liberty against unlawful or arbitrary exercise of State power, and not to shield a person from lawful investigations or prosecution. 26.This position is reflected in the Bail and Bond Policy Guidelines, 2015, which recognise anticipatory bail as an exceptional remedy available only where an applicant demonstrates a real and imminent threat of unlawful infringement of the right to liberty by a State organ. A subjective apprehension or speculative fear of arrest, without more, does not suffice. 27.The principles governing the grant of anticipatory bail are now well settled. In Samuel Muciri W'Njuguna –vs- Republic [2004] eKLR, the High Court held that anticipatory bail is available where there exist circumstances disclosing a serious breach or threatened breach of a citizen's fundamental rights by a State organ. The Court further emphasized that the remedy does not confer immunity from lawful investigations or require an applicant to evade lawful process. Rather, it exists to prevent abuse of executive power and to safeguard constitutional rights. 28.The same principle was reaffirmed in Mandiki Luyeye –vs- Republic [2015] eKLR, where the Court held that anticipatory bail shall only issue where an applicant demonstrates that his or her constitutional rights have been violated or are likely to be violated. 29.More recently, the High Court has consistently reiterated that the threshold for the grant of anticipatory bail is not met by a mere apprehension of arrest or prosecution, but by proof of a real, imminent and demonstrable threat of unlawful deprivation of liberty or abuse of State power. In Musa –vs- Republic [2024] KEHC 13726 (KLR), while affirming the principles enunciated in Eric Mailu v Republic & 2 Others, the Court observed:“Anticipatory bail would only issue when there was serious breach of a citizen’s rights by organs of state. Anticipatory bail was aimed at giving remedy for breach of infringement of fundamental constitutional rights in conformity with what the Constitution envisaged constituted protection of fundamental rights and freedoms of a citizen. It could not issue where an applicant laboured under apprehension founded on unsubstantiated claims. The fear of breach to fundamental right must be real and demonstrable. An applicant must demonstrate the breach by acts and facts constituting the alleged breach.” 30.The foregoing statement encapsulates the governing principle: anticipatory bail is not granted merely because an Applicant fears arrest or prosecution. Rather, the applicant bears the burden of demonstrating, through cogent evidence, a real, imminent and demonstrable threat of unlawful deprivation of liberty or violation of constitutional rights by a State organ. 31.Applying those principles to the present application, it is common ground that the Respondents commenced investigations upon receipt of a formal complaint. An inquiry file was opened, investigations undertaken, and the resultant file forwarded to the Office of the Director of Public Prosecutions, which approved the institution of criminal charges against the Applicants. The intended arrest therefore arises from an identifiable investigative process founded upon specified allegations and prosecutorial approval, and not from an arbitrary, capricious or unexplained exercise of police power. 32.The Applicants contend that unknown persons trailed them, that officers visited their residences with the intention of arresting them, and that they feared being abducted or subjected to cruel, inhuman or degrading treatment. However, these assertions are not supported by any cogent or objective material from which this Court can reasonably infer that the Respondents intended to act outside the law or in violation of the Applicants' constitutional rights. On the contrary, the material before the Court demonstrates that following the interim orders issued herein, the Applicants attended the Directorate of Criminal Investigations in the company of their advocates. There is no allegation that they were assaulted, unlawfully detained, denied access to counsel or otherwise subjected to treatment inconsistent with Articles 29, 49 or 50 of the Constitution. 33.The Applicants have placed considerable reliance on the decisions of the Court of Appeal, the Supreme Court and the Environment and Land Court concerning ownership of Land Reference No.10090/23. Those decisions conclusively determined the parties' proprietary rights over the suit property. They do not, however, insulate the Applicants from lawful criminal investigations where allegations are made that criminal offences were committed in the preparation, procurement or use of documents relating to that property. 34.As the Court of Appeal observed in Commissioner of Police & Director of Criminal Investigation Department & Another –vs- Kenya Commercial Bank Ltd & 4 Others [2013] eKLR, the criminal justice system should not be invoked to settle a purely civil dispute. Equally, Section 193A of the Criminal Procedure Code expressly provides that the existence of civil proceedings is not, of itself, a bar to criminal investigations or criminal proceedings where the facts disclose the commission of an offence. 35.Whether the suit property was subdivided, whether the impugned documents are authentic, and whether the Applicants bear any criminal responsibility are matters reserved for determination by the trial court, should criminal proceedings ultimately be instituted. Those are evidential questions to be determined, where appropriate, by the trial court upon consideration of the evidence presented before it. They cannot properly be resolved on contested affidavit evidence in an application for anticipatory bail. 36.Upon a careful consideration of the material placed before the Court, I am not persuaded that the Applicants have demonstrated the exceptional circumstances necessary to warrant the grant of anticipatory bail. At best, the material discloses an apprehension of arrest arising from ongoing investigations and an intended prosecution approved by the Director of Public Prosecutions. Without cogent evidence of an actual or imminent violation of constitutional rights, or of bad faith, oppression, malice, or abuse of the criminal justice process, such apprehension falls far short of the threshold established in the authorities governing the grant of anticipatory bail. 37.Having found that the Applicants have failed to satisfy the threshold for the grant of anticipatory bail, I now turn to consider the remaining prayers in the Motion, namely the requests for directions as to the venue of questioning and arraignment, and for the issuance of summons against the Respondents. ii) Whether the Court should direct the place of questioning and the court of arraignment 38.The Applicants further pray that, should they be required for questioning or investigations, they be questioned at the Directorate of Criminal Investigations Headquarters at Kiambu in the presence of their advocates and, if charged, be arraigned before the Chief Magistrate's Court at Kiambu. 39.I am unable to accede to that prayer. The investigation of criminal offences lies within the constitutional and statutory mandate within the constitutional and statutory mandate of the National Police Service and the Directorate of Criminal Investigations under Articles 243 and 245 of the Constitution and the National Police Service Act. Absent proof of an actual or threatened violation of constitutional rights, the Court ought not to direct or supervise the manner in which investigative agencies discharge their lawful mandate. 40.The material before the Court demonstrates that the Applicants responded to the Respondents' summons and attended before the Directorate of Criminal Investigations in the company of their advocates. There is no evidence that they were denied access to counsel or otherwise deprived of the constitutional safeguards guaranteed under Articles 49 and 50 of the Constitution. In those circumstances, no legal basis has been established for this Court to prescribe the venue at which the Applicants should be questioned. 41.By the same token, this Court cannot pre-empt the question of the proper trial court before which the Applicants may be arraigned should criminal charges ultimately be preferred. The question of the proper trial court is regulated by the applicable law governing jurisdiction and is dependent upon the nature of the charges and the place where the alleged offences are said to have been committed. That determination cannot properly be made in proceedings of this nature. iii) Whether summons should issue against the Respondents 42.The Applicants further seek summons requiring the Respondents to show cause in the event of any disobedience of this Court's orders. 43.That prayer is misconceived and premature. The Court's jurisdiction to enforce its orders or invoke contempt proceedings arises only upon proof of an existing court order and evidence of its disobedience. No such breach has been alleged or demonstrated. The Court cannot issue anticipatory summons founded upon the possibility of a future or speculative act of disobedience. DISPOSITION 44.For the foregoing reasons, none of the reliefs sought in the Motion has been established to the requisite legal threshold. 45.In the result, the Originating Notice of Motion dated 19th January 2026 is devoid of merit and is hereby dismissed in its entirety. In view of the nature of the dispute and the circumstances giving rise to these proceedings, I direct that each party shall bear its own costs.Orders accordingly. File closed accordingly. DATED, SIGNED AND DELIVERED AT KIAMBU THIS 16TH DAY OF JULY 2026............................BAHATI MWAMUYE MBSJUDGEIn the presence of:-Counsel for the Applicants –Counsel for the Respondents –Court Assistant -