https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11412

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT KAJIADO** **CONSTITUTIONAL AND HUMAN RIGHTS DIVISION** **CONSTITUTIONAL PETITION NO. E020 OF 2024** **APURETI KAIPEI KAREI…………………..……………………….. PETITIONER/APPLICANT** **-VERSUS-** **THE INSPECTOR-GENERAL OF THE NATIONAL POLICE SERVICE… 1ST RESPONDENT** **DIRECTOR OF PUBLIC PROSECUTIONS…………..………………… 2ND RESPONDENT** **THE CHIEF MAGISTRATE COURT AT KAJIADO……………………. 3RD RESPONDENT** **MUKAAMPA LELETA KISOSO……………...………………………….. 4TH RESPONDENT** **RULING** **Background** 1. The Petitioner/Applicant has moved this court by way of a Notice of Motion dated 6th November 2024, seeking orders that: 2. *Spent.* 3. Pending the *inter partes* hearing and determination of this application, a conservatory order be issued staying the proceedings in Kajiado Criminal Case No. E204 of 2023 — Republic v Apureti Kaipei Karei. 4. Pending the hearing and determination of the Applicant’s Petition, a conservatory order be issued staying the proceedings in Kajiado Criminal Case No. E204 of 2023 — Republic v Apureti Kaipei Karei. 5. Pending the hearing and determination of the Applicant’s Petition, a temporary injunction be issued restraining the 1st, 2nd, 3rd and 4th Respondents from arresting, harassing and/or intimidating the Applicant. 6. In the alternative, both this application and the Petition be heard contemporaneously and in an urgent and expedited manner that does not further jeopardise the rights of the Applicant/Petitioner. 7. The application is grounded on the contention that the Applicant is the registered and absolute owner of land parcel LR No. KJD/Kaputei-Central/571 situate in Kajiado County (the “suit property”). He contends that on 13th August 2020, the 4th Respondent unlawfully entered the suit property through hired individuals who, by force and threats, cut down vegetation, dug holes and erected a fence, thereby interfering with his quiet possession. As a result, he instituted Kajiado ELC Case No. 55 of 2020, seeking among other reliefs a permanent injunction against the 4th Respondent. 8. The Applicant further avers that he has never sold, transferred or otherwise disposed of any portion of the suit property to the 4th Respondent or to any other person. He avers that without his knowledge or consent, the suit property was fraudulently subdivided and new titles issued, namely Kajiado/Kaputiei-Central/1036 registered in his name and Kajiado/Kaputiei-Central/1037 purportedly registered in the name of the 4th Respondent. 9. The Applicant further avers that on 19th February 2023, he was unlawfully arrested and detained by officers of the 1st Respondent acting on the instructions of the 4th Respondent, and was thereafter arraigned before Kajiado Chief Magistrate’s Court on a charge of forcible entry contrary to Section 90 of the Penal Code in Criminal Case No. E204 of 2023. He maintains that the decision to charge was maliciously instigated by the 4th Respondent, is without a proper factual and legal basis, and is aimed solely at coercing him to relinquish his ownership rights to the suit property and to withdraw the civil suit before the ELC. 10. The Applicant additionally avers that despite repeated requests to the 2nd Respondent, he has been denied access to information regarding the investigations conducted into the alleged subdivision and transfer of the suit property — information critical to the civil proceedings. He adds that officers of the 1st Respondent have continued to arrest and release him without preferring any charges or giving reasons therefore, a conduct which has adversely affected his health and peace of mind, more so given his advanced age. 11. The application is supported by the affidavit of the Applicant sworn on 6th November 2024, a further affidavit sworn on 30th May 2025, and written submissions filed on 30th May 2025. 12. The 4th Respondent opposed the application through a replying affidavit sworn on 21st February 2025. He avers that he is the registered proprietor of land parcel Kajiado/Kaputiei-Central/1037, measuring approximately 40.48 hectares, which he lawfully acquired from the Applicant in 1985 by way of an exchange with parcel Kajiado/Kaputiei-Central/808. He contends that the suit property was regularly subdivided into parcels 1036 and 1037 as a consequence of that exchange. He further avers that the Applicant has continuously interfered with his possession and occupation of parcel 1037 through forceful grazing of livestock and sand harvesting. He states that the Applicant instituted Kajiado ELC Case No. 55 of 2020 against him, to which he filed a defence and counterclaim. That suit was determined in his favour — the Applicant’s claim was dismissed and his counterclaim was allowed by the judgment in *Karei v Kisoso & 2 others (Environment & Land Case 55 of 2020) [2024] KEELC 6785 (KLR)* — a determination which the Applicant has since appealed at the Court of Appeal vide Civil Appeal No. E062 of 2024. 13. The 4th Respondent further contends that the Applicant has not demonstrated that the criminal charges in Kajiado CMCR Case No. E204 of 2023 amount to an abuse of the court process, that the decision to charge was reached with proper regard to the public interest and the administration of justice, and that civil and criminal proceedings may lawfully run concurrently by virtue of Section 193A of the Criminal Procedure Code. He urges that the Applicant has not established a prima facie case and prays for dismissal of the application with costs. 14. The court directed that the application be canvassed by way of written submissions. Only the Applicant complied with that direction. **Determination** 1. I have carefully considered the application, the supporting and further affidavits of the Applicant, the replying affidavit of the 4th Respondent, and the written submissions of the Applicant. The principal issue for determination is whether conservatory orders ought to issue in the circumstances of this case. 2. The principles governing the grant of conservatory orders in constitutional petitions are well settled. The Supreme Court in ***Gatirau Peter Munya v Dickson Mwenda Kithinji & 2 Others [2014] eKLR***, at paragraph 86, described the nature of conservatory orders in the following terms: **“Conservatory orders bear a more decided public-law connotation: for these are orders to facilitate ordered 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 as ‘the prospects of irreparable harm’ occurring during the pendency of a case; or ‘high probability of success’ in the supplicant’s case for orders of stay. Conservatory orders, consequently, should 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.”** 1. Conservatory orders are therefore interim relief granted to preserve the substratum of the dispute pending the determination of the main cause. Their purpose is protective and not determinative. The threshold that an applicant must satisfy before such orders are granted has been crystallised to the following conditions: first, that the applicant has a prima facie case with a likelihood of success; second, that denial of the orders would render the petition or its substratum nugatory; and third, that the public interest and relevant considerations favour the grant. See ***Nubian Rights Forum & 2 others v Attorney General & 6 others [2020] eKLR* and *Centre for Rights Education and Awareness (CREAW) & 7 others v Attorney General [2011] eKLR***. 2. The demonstration of a prima facie case is the cornerstone in determining an application of this nature. A prima facie case is not one that must necessarily succeed at the trial of the main cause. In ***Mrao Limited v First American Bank of Kenya & 2 others [2003] KLR 125***, the Court of Appeal defined a prima facie case as including but not confined to a genuine and arguable case — one on the material presented to the court where a tribunal properly directing itself would conclude there exists a right which has apparently been infringed by the opposite party as to call for an explanation or rebuttal. Without establishing a prima facie case, the court cannot proceed to consider the other conditions. The burden rests squarely on the applicant to demonstrate that the petition discloses arguable issues worthy of trial. See ***Mwaniki v Ndiga & 3 others (Constitutional Petition E020 of 2024) [2025] KEHC 9562 (KLR)*.** 3. In urging this court that he has established a prima facie case, the Applicant contended that officers of the 1st Respondent subjected him to arbitrary arrests and harassment in violation of his right to equality under Article 27, that the continuous harassment violated his right to dignity under Article 28, that the fraudulent subdivision of his property violated his right to property under Article 40, and that the manner of his arrest violated the rights of older members of society enshrined under Article 57. He additionally invoked Articles 47, 49 and 50 of the Constitution and the Guidelines on the Decision to Charge, 2019, in challenging the lawfulness of the decision to prosecute him. 4. The Applicant’s case rests, fundamentally, on the assertion that he is the rightful registered owner of the suit property and that the criminal proceedings have been maliciously engineered by the 4th Respondent to dispossess him of it. However, the very foundation of that case has been considerably shaken by the determination of the ELC. In ***Karei v Kisoso & 2 others (Environment & Land Case 55 of 2020) [2024] KEELC 6785 (KLR)***, the Environment and Land Court, after a full hearing, dismissed the Applicant’s claim and allowed the 4th Respondent’s counterclaim, finding that the suit property belongs to the 4th Respondent. That judgment is currently on appeal at the **Court of Appeal vide Civil Appeal No. E062 of 2024**. At this interlocutory stage, where the ELC has made a substantive finding adverse to the Applicant on the very property rights he now seeks to protect through this petition, the Applicant’s prima facie case for the grant of conservatory orders is considerably diminished. 5. On the prayer for stay of Criminal Case No. E204 of 2023, the Applicant bore the duty to lay at least the slightest basis that the 1st to 3rd Respondents acted illegally in charging him. See ***Republic v Director of Immigration Services & 2 others Ex parte Olamilekan Gbenga Fasuyi & 2 Others [2018] eKLR***. The DPP’s power to prosecute is constitutionally entrenched. Article 157(10) of the Constitution is categorical that 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 powers or functions, shall not be under the direction or control of any person or authority. The Applicant has not demonstrated that the decision to prefer charges against him was made in excess of jurisdiction, in violation of the rules of natural justice, or in such disregard of the applicable Guidelines on the Decision to Charge as would justify this court’s intervention at this stage. 6. Courts have further consistently affirmed that there is no bar to the concurrent running of civil and criminal proceedings. Section 193A of the Criminal Procedure Code expressly contemplates such concurrence. The Applicant’s apprehension — that the criminal proceedings are designed to frustrate the civil dispute — is not without some basis in the narrative he presents, but apprehension and narrative are not evidence. The inherent jurisdiction of a court to halt a prosecution is to be exercised only in exceptional circumstances and where the conduct complained of goes to the root of the fairness of the trial itself. See ***Republic v Director of Public Prosecutions & 2 others Ex parte Edwin Harold Dayan Dande & 3 others [2018] KEHC 9432 (KLR)*.** The Applicant has not discharged the threshold necessary to attract the exercise of that jurisdiction. 7. In the result, I am not satisfied that the Applicant has established a prima facie case with a likelihood of success on either of the prayers sought. Having failed on this foundational basis, it is unnecessary to proceed to consider the remaining conditions relating to the nugatory nature of the petition or the balance of public interest. The application is accordingly devoid of merit. 8. Accordingly, the Notice of Motion dated 6th November 2024 is hereby dismissed with costs to the 4th Respondent. It is so ordered. **DATED, SIGNED AND DELIVERED AT GARISSA VIRTUALLY THIS 23RD DAY OF JULY, 2026** **JOHN T. LOLWATAN** **JUDGE**