[2025] KEHC 8342 (KLR)

Kavisa v Inspector General of Police & 5 others; Kihanda & another (Interested Parties) (Constitutional Petition E198 of 2021) [2025] KEHC 8342 (KLR) (Constitutional and Human Rights) (13 June 2025) (Judgment)

Neutral citation: [2025] KEHC 8342 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Constitutional and Human Rights

Constitutional Petition E198 of 2021

EC Mwita, J

June 13, 2025

Between

Nancy Mueni Kavisa

Petitioner

and

Inspector General of Police

1st Respondent

Director of Public Prosecution

2nd Respondent

Director of Criminal Investigation

3rd Respondent

The Attorney General

4th Respondent

Nairobi City Court, Criminal Division

5th Respondent

Constable Joseph Omeru Central Police Station

6th Respondent

and

Elizabeth Kihanda

Interested Party

Charles Kioi

Interested Party

Judgment

Petitioner’s case 1. The petitioner is one of the widows of James Murira Kioi (deceased). She is mother to Canon Kioi Murira and Salome Wairimu Murira, step mother to Charles Kioi and Geoffrey Kihanda and co-wife to Elizabeth Wambui Kihanda. She is proposed co-administrator in Cause No. 62 of 2018.

2. The petitioner was arrested and charged in Criminal Case No. No. E 602 of 2021 with forgery and uttering a false document. This prompted her to file this petition asking the court to halt the prosecution on grounds that it is a violation of her rights and fundamental freedoms.

3. The petitioner stated that at the time of her marriage with the deceased, Elizabeth Wambui Kihanda, (1st interested party) had moved out of the matrimonial home because of irreconcilable differences with the deceased. The 1st interested party left three children namely; Charles Murira Kioi, Geoffrey Kihanda and Veronica Mwihaki Murira whom the petitioner took care of when the deceased married her. The petitioner and the deceased were blessed with two children; Cannon Kioi Murira and Salome Wairimu Murira.

4. When the deceased died on 5th October 2017, the 1st interested party came back immediately and started demanding the deceased’s property. The petitioner instructed the law firm of Njuguna & Ng’ang’a Associates Advocates to apply for an ad litem grant of letters of administration for purposes of administering the deceased’s estate. She later received a copy of the grant from Danson Ng’ang’a of the said law firm and shared the copy with the 1st interested party.

5. Subsequently, the 1st interested party lodged a complaint at Parliament Police station alleging that the grant was a forgery. After investigations, investigators at Parliament police station recommended that charges, if any, were to be preferred against the advocate.

6. The petitioner stated that after sometime, the file was transferred to Central police station and she was subsequently charged in Criminal Case No. E602 of 2021 with forgery of judicial documents contrary to section 351 of the Penal Code and uttering a false document contrary to section 353 of the Penal Code. As a result of those allegation and the letters of administration being the subject of criminal proceedings, she applied for a special limited grant so that she could represent the deceased’s estate in court cases.

7. It is the petitioner’s case that the 1st and 2nd respondents’ officers and particularly the 6th respondent, summoned her on various occasions to record statements and adduce evidence which she did. The officers were however not acting in good faith because they were taking her round requiring her to appear in different police stations without taking into account of the cost she was incurring.

8. The petitioner asserted that police officers at Central police station asked for a bribe so that they could halt the criminal proceedings and openly admitted that the 1st interested party was the one pushing for her arrest and prosecution. The petitioner averred that she had been subjected to untold mental anguish, frustration and distress by the 6th respondent’s actions influenced by the 1st interested parties.

9. The petitioner contended, therefore, that the charges against her are arbitrary, unlawful and fuelled by personal vendetta from police officers due to her refusal to give a bribe to compromise the criminal case.

10. Based on the foregoing, the petitioner contended that the respondents had violated her rights guaranteed under Articles 25, 28, 27, 49(1)(d), 75(1) and 244 of the Constitution and sections 14A and 24 of the National Police Service Act. She sought the following relief:a.A declaration do issue that the continued conduct of proceeding in Criminal Case No. E 602 of 2021 by the trial Magistrate Court is in violation of petitioners right to fair trial.b.This Honourable court do issue conservatory orders of stay of proceedings in Criminal Case E 602 of 2021 Republic v Kavisa Mueni Nancy.c.This Honourable Court do issue an order quashing the entire proceedings in MCCR/E602/2021 Republic v Kavisa Mueni Nancy and the petitioner be set at liberty in regard hereof.d.This Honourable Court do issue an order of permanent restraint against the respondents from investigating and/or charging the petitioner herein on account of facts in issue in MCCR/E602/2021 Republic v Kavisa Mueni Nancy.e.Cost of the suit.

Responses 11. The respondents opposed the petition through grounds of opposition and a replying affidavit.

1st, 2nd, 3rd and 6th respondents’ response 12. The 1st, 2nd, 3rd and 6th respondents filed a replying affidavit sworn by the 6th respondent, No. 74XX8 CPL Joseph Omeru (CPL Omeru). CPL Omeru deposed that on 11th March 2020, the Directorate of Criminal Investigations (DCI) received a police case file Number CR/114/12/2020 from Parliament police station with an advisory letter from the 2nd respondent directing them to undertake further investigations on the forgery claims made by the interested parties against the petitioner.

13. CPL Omeru wrote a letter to Kiambu Law Courts requesting the court administration to confirm the authenticity of the grant. In a letter dated 17th June 2020, the court administrator indicated that the grant did not originate from that court. The court administrator further indicated that their file, Succession Cause No. 321 of 2018 did not relate to the purported forged grant but was for the Estate of Daniel Kamau Ndethi alias Kamau Ndehi.

14. CPL Omeru visited the Kiambu Chief Magistrate’s Court to ascertain the existence of the file that the petitioner’s advocate had allegedly filed. He found out that there was no succession cause filed at Kiambu Law Courts in respect of the deceased’s estate.

15. CPL Omeru summoned the complainant who mentioned that the grant had been used by the petitioner to file ELCC 397 of 2018 at Milimani Law Courts. CPL Omeru wrote to the Registrar of the ELC, Milimani a letter dated 20th July 2020 to ascertain the complainant’s allegations, which were confirmed.

16. CPL Omeru stated that the initial investigating officer from Parliament police station, Corporal John Mwai, had earlier on summoned Hon. Justus Kituku of Kiambu Law Courts, recorded his statement and gave his specimen signatures which he forwarded to the document examiner at CID headquarters for forensic analysis. The forensic examiner had formed the opinion that the specimen signature did not match the signature on the impugned grant.

17. CPL Omeru summoned the petitioner to explain the issues surrounding the grant. The petitioner stated that she had instructed an advocate to file the succession cause on her behalf but the petitioner did not provide any proof. It was on that basis that CPL Omeru concluded that an offence had been committed. The file was forwarded to the 2nd respondent who directed that the petitioner be arrested and charge with the offence of forgery of a judicial document.

18. On 18th May 2021, the petitioner was charged in Criminal case No. E602 of 2021 and pleaded not guilty. The petitioner kept on interfering with his mandate by sending personal messages to his mobile number and through WhatsApp. CPL Omeru denied demanding or receiving any incentive from the petitioner to compromise the case.

4th respondent’s response 19. The 4th and 5th respondents opposed the petition through filed ground of opposition. It was contended that petitioner had not demonstrated how they had violated her constitutional rights; that the 4th respondents does not represent the National government in criminal proceedings and police officers were undertaking their statutory mandate under sections 24 and 35 of the National Police Service Act. They placed reliance on the decisions in Republic v Directorate of Criminal Investigation Department & 4 others Exparte Edwin Harold Dayan Dande & 4 others [2016] eKLR and Thuita Mwangi & 2 others v Ethics & Corruption Commission & 3 others [2013] eKLR.

20. It was the 4th and 5th respondents’ case, that the petitioner had failed to establish that her prosecution was unfair and unfounded. They relied on Simon Macharia Njenga v Anti- Counterfeit Agency & 3 Others [2018] eKLR.

21. The 4th and 5th respondents asserted that the law provides avenues through which the petitioner can appeal if aggrieved by the decision of the trial Court, and cited the case of Republic v Director of Public Prosecutions & 4 others Ex-parte Simion Nyamanya Ondiba [2018] eKLR in that respect and asked the court not to interfere with the mandate of the trial court.

Interested parties’ response 22. The interested parties opposed the petition through a replying affidavit sworn by the 1st interested party. She deposed that at the time of the deceased’s death, her sons were already over 18 years and they never had a family meeting to appoint administer for the deceased’s estate.

23. The 1st interested party stated that the petitioner obtained letters of administration without their consultation and used the grant to sell the deceased’s properties. Further, that the letters of administration were not properly obtained because there is no record of such a succession cause.

24. The 1st interested party stated that a complaint was reported to the police who carried out investigations and preferred charges against the petitioner. The 1st interested party contended that the petition has been brought to delay the cause of justice.

Submissions 25. The petition was disposed of through written submissions with oral highlights.

Petitioner’s submissions 26. Dr. Khaminwa, learned counsel for the petitioner, argued that the respondents violated the Constitution and the law in preferring charges against the petitioner. Dr. Khamimwa relied on Article 157(4) and (11) of the Constitution and the decision in Commissioner of Police & Another v Kenya Commercial Bank Ltd & 4 others [2013] eKLR to argue that the 2nd respondent is required to exercise its mandate to prevent and avoid abuse of the legal process. Where there is abuse of power the court should intervene.

27. According to Dr. Khaminwa, the decision to prosecute the petitioner was arbitrary, unlawful and was fuelled by personal vendetta due to pressure from the 1st interested party coupled with the petitioner’s refusal to give a bribe to the police to compromise the criminal case. This was because police officers at Parliament police station found no probable cause against the petitioner yet the respondents caused the file to be transferred to central police station for allegedly further investigation.

28. Dr. Khaminwa relied on the decision in Ramalingam Ravinthran v Attorney General [2012] SGCA 2 (para 28) to argue that there is prima facie breach of fundamental liberty because police officers at Parliament police station were of the view, that the charge was not maintainable as the document in question did not originate from the petitioner.

29. Learned counsel submitted that the 2nd respondent acted contrary to Article 157(11) of the Constitution and sections 4 and 26 of the Office of the Director of Public Prosecutions Act. He also submitted that the 1st respondent violated the law in the manner investigations were conducted and the matter handled. The demand for a bribe and receiving instructions from the 1st interested party to ensure the petitioner was prosecuted as well as forcing the petitioner to give self-incriminating evidence, violated Article 244 of the Constitution and sections 10 and 49(4) of the National Police Service Act.

30. It was Dr. Khamonwa’s position, that the petitioner’s rights guaranteed under Articles 10, 28, 29(d) and 50 of the Constitution were violated. Counsel relied on the decision in Maina & 4 others v Director of Public Prosecutions & 4 others [2022] KEHC 15(KLR) to argue that the first information report by the investigating officers at Parliament police station was that the petitioner could not be charged for the offence of forgery.

31. Learned counsel argued that the 1st and 2nd respondents’ actions amounted to selective prosecution thus, the court should intervene. This is because although the alleged forged grant originated from the petitioner’s advocates, the petitioner was the one being prosecuted. He relied on the decision in Henry Aming’a Nyabere v Director of Public Prosecutions & 2 others; Sarah Joslyn & another (Interested parties) [2021] KEHC 5610(KLR).

32. Dr. Khaminwa again relied on the decisions in Bernard Mwikya Mulinge v Director of Public Prosecutions & 3 others [2019] eKLR and Nakusa v Tororei & 2 others (No.2) Nairobi HCEP No. 4 of 2003 [2008] 2 KLR (EP) 565 and urged the court to allowed the petition.

Respondents’ submissions 33. The 1st, 2nd 3rd and 6th respondents filed written submissions but the 4th and 5th respondents did not.

1st, 2nd, 3rd and 6th respondents’ submissions 34. Miss Arunga relied on her written submissions. It was submitted that the petitioner had failed to demonstrate how the 2nd respondent violated section 4 of the ODPP Act in undertaking his mandate. It was further argued that the petitioner had not discharged the burden of proof required under sections 107 and 109 of the Evidence Act to warrant the court’s intervention. Reliance was also placed on the decisions in Maina & 4 others v Director of public Prosecutions & 4 others (supra) and Henry Aming’a Nyabere v Director of Public Prosecutions & 2 others; Sarah Joslyn & another (Interested parties) (supra).

35. According to the respondents, public interest demands that every complaint made to the police be investigated and should an offence be disclosed, it ought to be prosecuted. The petitioner had failed to demonstrate that the case against her has no merit. They relied on the decision in Diamond Hasha Lalji &another v Attorney General &4 others [2018] eKLR.

36. It was again submitted that while the petitioner alleged that there is no sufficient evidence to mount prosecution against her, sufficiency of evidence is a matter for the trial court. Reliance was placed on the decision in Lalchand Fulchand Shah v Investments & Mortgages Bank Limited & 5 others [2018] eKLR.

37. Further reliance was placed on the decision in Benard Mwikya Mulinge v Director of Public Prosecutions & 3 others [2019] eKLR and urged the court not to usurp the mandate of the DPP merely on the ground that the criminal proceedings are bound to fail.

38. The respondents further cited the decisions in Kipoki Oreu Tasur v Inspector General of Police & 5 others [2014] eKLR and Communications Commission of Kenya & 5 others v Royal Media Services Limited & 5 others [2014] eKLR for the submission that the petitioner had failed to demonstrate how her rights had been violated.

39. Although the 4th and 5th respondents did not file submissions, Miss Robi, holding brief for Mr. Marwa supported the position taken by the other respondents and urged the court to dismiss the petition.

Interested parties’ submissions 40. The interested parties did not file submissions. However, Mr Wamuti, counsel for the interested parties supported the position taken by the respondents and associated himself with submissions made on behalf of the respondents. He urged the court to dismiss the petition.

Determination 41. I have considered the petition, responses, arguments made on behalf of the parties and the decisions relied on. The gravamen of this petition is the DPP’s decision to prosecute the petitioner in Nairobi Magistrate’s Criminal Case No. E602 of 2021 over a grant of letters of administration ad litem issued to the petitioner thus, raising the question whether the petitioners’ prosecution is a violation of the principles in Article 157(11), of the Constitution, calling on this court to halt it.

42. The main cause of the criminal prosecution is an alleged forged grant of letters of administration ad litem issued in favour of the petitioner for purposes of administering the deceased’s estate, following a complaint made to the police by the interested parties.

43. The facts of this petition are not disputed. The petitioner and 1st interested party are widows to the deceased. After the deceased died intestate on 5th October 2017, the petitioner instructed the firm of Njuguna &Ng’ang’a Associates Advocates to apply for grant of administration for purposes of administering the deceased’s estate. The petitioner later received a copy of a grant of letters of administration ad litem from Danson Ng’ang’a of the said law firm and sent a copy of that grant to the 1st interested party.

44. The 1st interested party then lodged a complaint with the police at Parliament Police Station against the petitioner. Police officers from that station carried out investigations. Their conclusion was that charges, if any, were to be preferred against the advocate. That meant there no criminal culpability on the part of the petitioner. In short, police investigations in that station concluded that the petitioner had not committed any offence.

45. The file was, however, transferred to Central Police Station, Nairobi for further investigation. Officers from Central Police Station again investigated the complaint and forwarded the file to the ODPP with recommendation that the petitioner be charged. The DPP directed that the petitioner be charged and prosecuted for forgery of a judicial document and uttering a false document.

46. The petitioner argued that police officers at Central Police Station were malicious, unfair and demanded a bribe so that they could discontinue the criminal investigations and subsequent prosecution which she declined and that was why she was being prosecuted. It was the petitioner’s position, that the charges preferred against her and prosecution was malicious and was being pushed by the interested parties; is in violation of her rights and fundamental freedoms and violates article 157(11) of the Constitution.

47. The respondents maintained that they acted within the Constitution and the law and that the petitioner had not discharged the burden of proof that their actions violated the Constitution, the law or her rights and fundamental freedoms. This position was supported by the interested parties.

48. The police have statutory mandate to discharge in the performance of their functions. Section 24 of the Police Service Act provides for the functions of the Police Service which include; investigating crime, maintenance of law and order and protection of life and property. That is, the police are mandated to investigate complaints reported to them on commission of crime. This is a statutory duty placed on the police and which they have an obligation to discharge.

49. In discharging their mandate, the police are required to do so subject to the constitutional safeguards of human rights and fundamental freedoms. Police can investigate any complaints of a criminal nature to ascertain whether or not a crime had been committed. Once investigations are concluded and the police form the opinion that a crime was committed, the investigation file is forwarded to the DPP to make a decision on whether or not to charge and prosecute. If investigations, however, conclude that no offence was committed, the file is closed and that is the end of the matter.

50. On the other hand, article 157(6) confers on the DPP constitutional mandate and discretion to initiate, continue and or terminate criminal prosecutions. When exercising this discretion, the DPP does not require permission or consent from any person or authority. However, article 157(11) demands that when the DPP is exercising his powers, he should do so in a manner that has regard to public interest, interests of administration of justice and prevents and avoids abuse of the legal process. (See Director of Public Prosecutions v Martin Mina & 4 others [2017] eKLR).

51. In that premise, the law is settled that where the police are investigating crime, or the DPP is exercising constitutional discretion conferred on that office, courts will rarely interfere with that mandate.

52. In Republic v Director of Public Prosecution & 2 others Ex parte Francis Njakwe Maina & another [2015] eKLR, it was observed that courts should not usurp the constitutional mandate of the DPP to undertake prosecution in exercise of the discretion conferred on that office. The Court however pointed out that if a party demonstrates that the criminal proceedings constitute an abuse of process, the court will not hesitate in putting a halt to such proceedings.

53. Similarly, in Paul Ng’ang’a Nyaga v Attorney General & 3 others (2013) eKLR, it was held that the court will only interfere with, and interrogate acts of other constitutional bodies, if there is sufficient evidence that those bodies acted or are acting in contravention of the Constitution or the law.

54. In this regard, the intention of the Constitution was to enable the DPP carry out constitutional mandate of that office without interference from anybody. The Court cannot direct or interfere with the DPP’s exercise of constitutional powers unless there is clear evidence of violation of a party’s rights or the Constitution itself (Francis Anyango Juma v The Director of Public Prosecutions and another [2012] eKLR).

55. In a persuasive decision of Williams v Spautz [1992] HCA 34; 174 CLR 509; 66 ALJR 585, the Court stated that “If a stay is sought to stop a prosecution which has been instituted and maintained for an improper purpose, it by no means follows that it is necessary, before granting a stay, for the court to satisfy itself in such a case, that an unfair trial will ensue unless the prosecution is stopped.”

56. The decisions referred to above emphasise the point that the DPP’s discretion to charge should only be interfered with where there is evidence of abuse, malice or ulterior motive in mounting a prosecution. That is, institution of criminal prosecution which exhibits abuse of discretion or undermines the essence of criminal justice system, will be interfered with.

57. In this petition, the petitioner argued that the criminal prosecution was instituted in bad faith and because she had refused to give a bribe to the police. Her position was that the prosecution was instituted to aid the complainant(s) and by extension, intimidate the petitioner to accede the demand for a bribe.

58. The petitioner further argued that she did not commit forgery as the impugned document was given to her by her advocate whom she had instructed to apply for grant of letters of administration. That was why investigations by police officers from Parliament police station concluded that she had not committed any offence since the letters of administration were given to her by the advocate.

59. I have considered the arguments by parties and perused the record. The issue here is whether the court should stop the petitioner’s prosecution. There is no dispute that the petitioner is being prosecuted over a grant of letters of administration purported to have been issued by a Kiambu Court, a Cause which, according to the respondents, did not relate to the deceased’s estate and the grant was, therefore, a forgery.

60. The petitioner explained how she obtained the grant of administration the basis of her prosecution. Investigations by police officers from Parliament police station concluded that she had not committed any offence and that any prosecution should have been against the advocate. On the file being transferred to Central police station, the position changed that the petitioner be prosecuted.

61. The respondents did not explain why the file was transferred from Parliament police station to Central Police Station. They also did not explain why the conclusion changed from prosecuting the advocate to one of prosecuting the petitioner. It was not made clear to this court whether the “new investigations” faulted the previous investigations which had concluded that the advocate be charged and prosecuted and why. In other words, the respondents did not conclude that it was the petitioner who forged the document or why they doubted the petitioner’s explanation on how she got the document.

62. From the record, the respondents and the interested party did not dislodge the petitioner’s explanation regarding the impugned grant of letters of administration; could not justify the sudden change of station and investigating officers leading to the conclusion that the petitioner be the one to be charged and prosecuted but not the advocate. In that case, the contention that there was bad faith on the part of the respondents cannot be wished away.

63. I have also perused the chargesheet and, in particular, the charges the petitioner is facing. Although the issue may be of fact, the court cannot ignore the fact that the petitioner could not forge a document she did not even understand. Her explanation that the document was given to her by her advocate was also ignored without explanation.

64. In Diamond Hasham Lalji & another v Attorney General and 4 others [2018] eKLR, the Court of Appeal stated at paragraph 42 that: “The burden of proof rests with the person alleging unconstitutional exercise of prosecutorial power. However, if sufficient evidence is adduced to establish a breach, the evidential burden shifts to the DPP to justify the prosecutorial decision.”

65. The court then stated:(45)In considering the evidential test, the court should only be satisfied that the evidence collected by the investigative agency upon which the DPP’s decision is made establishes a prima facie case necessitating prosecution. At this stage the courts should not hold a fully-fledged inquiry to find if evidence would end in a conviction or acquittal. That is the function of the trial court. However, a proper scrutiny of facts and circumstances of the case are absolutely imperative.

66. In Njuguna S. Ndung’u v Ethics & Anti-Corruption Commission (EACC) & 3 others [2018] KECA 47 (KLR), the Court of Appeal referred to, among others, the DPP’s National Prosecution Policy (paragraph 4 B (1)) that; “The decision to prosecute as a concept envisages two basic components namely; that the evidence available is admissible and sufficient and that public interest requires a prosecution to be conducted…”

67. The court further referred to paragraph 4 B (2) of the policy on the evidential test which states that:Public prosecutors in applying the evidential test should objectively assess the totality of the evidence both for and against the suspect and satisfy themselves that it establishes a realistic prospect of conviction. In other words, public prosecutors should ask themselves; would an impartial tribunal convict on the basis of the evidence available?

68. The Court then stated at paragraph 24, that the High Court had erred in law by failing to “scrutinize the charges, the relevant documents and reach a conclusive and objective decision on whether or not the charges had any legal or factual foundation and also a realistic prospect of conviction.” In other words, when dealing with a challenge to the DPP’s decision to prosecute, the court should examine the charges for any legal foundation and the prospect of conviction thereby determine whether or not to stop the prosecution.

69. Taking into account the position in the above decisions, and considering the facts of this case and on evaluating the documents relied on and their evidential value, there can be no other conclusion than that an objective evidential test was not done to demonstrate that there was prospect of conviction in the prosecution mounted against the petitioner. There was no nexus between the alleged forged document and the petitioner or that the petitioner forged the document. There was also no reason for ignoring the petitioner’s explanation on how she got the document. There was no explanation or justification for transferring the file from one police station to another and why the initial investigative conclusion regarding the person who should be prosecuted was ignored.

70. In the circumstances, this court is satisfied that the police did not comply with its mandate to discharge their functions subject to the constitutional safeguards of human rights and fundamental freedoms. The DPP also failed to comply with the principles in Article 157(11) of the Constitution so that exercise of his powers should be done in a manner that has regard to public interest, interests of administration of justice and prevents and avoids abuse of the legal process. The petitioner’s concerns that there was demand for a bribe; that there was intimidation and that there was malice in pushing for her prosecution were not dislodged.

71. Consequently, having considered the petition, responses and arguments by parties, I am satisfied that the petitioner has made out a case and has to succeed. The upshot is that the petition is allowed and the court makes the following declarations and orders.1. A declaration is hereby issued that the continued conduct of proceeding in Criminal Case No. E 602 of 2021 by the Chief Magistrate’s Court, Nairobi is a violation of petitioners right to fair trial.2. An order of certiorari is hereby issued quashing the proceedings in the Chief Magistrate’s Criminal Case No. E602 of 2021 -Republic v Kavisa Mueni Nancy.3. An order of prohibition is hereby issued prohibiting the respondents from charging or prosecuting Nancy Mueni Kavisa on account of matters relating to the facts in issue in the Chief Magistrate’s Criminal Case No. E602 of 2021. Nairobi, Republic v Kavisa Mueni Nancy.4. Each party shall bear own costs of the petition.

DATED AND DELIVERED AT NAIROBI THIS 13TH DAY OF JUNE 2025E C MWITAJUDGE