[2025] KEHC 1843 (KLR)
The court declined to grant the ex parte conservatory and disclosure orders sought by the applicant due to the applicant's failure to disclose the police station involved in the investigation and detention. This non-disclosure was material, as it prevented the court from determining whether it had territorial...
Source-derived case information.
- Citation
- [2025] KEHC 1843 (KLR)
- Parties
- Applicant: Oichoe Hans Kevin; Applicant: Zahra Salim Darvesh; Applicant: Imran Husseinali Sherali; Applicant: Fatmabhai Sherali Esmail; Applicant: Farhan Salim Darveshi; Respondent: Directorate of Criminal Investigations
- Court
- High Court
- Court Station
- High Court at Kibera
- Jurisdiction
- Kenya
- Case Number
- Criminal Petition E002 of 2025
- Procedural Posture
- Criminal Petition / Ruling on Ex Parte Notice of Motion for Conservatory and Disclosure Orders
- Outcome
- Ex parte orders declined; application certified urgent and directions issued for inter partes hearing.
- Judges
- DR Kavedza
- Legal Topics
- Abuse of Process, Right to Fair Trial, Professional Privilege, Jurisdiction, Conservatory Orders
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Oichoe Hans Kevin
Applicant
Zahra Salim Darvesh
Applicant
Imran Husseinali Sherali
Applicant
Fatmabhai Sherali Esmail
Applicant
Farhan Salim Darveshi
Applicant
Directorate of Criminal Investigations
Respondent
Procedural Posture
Criminal Petition / Ruling on Ex Parte Notice of Motion for Conservatory and Disclosure Orders
Legal Issues
- 1 Whether the applicant is entitled to ex parte conservatory orders restraining the respondent from arresting, charging, or intimidating the 1st petitioner in connection with his legal work.
- 2 Whether the respondent's actions amount to a violation of the applicant's constitutional rights and fundamental freedoms.
- 3 Whether the High Court at Kibera has territorial jurisdiction to grant the orders sought given the alleged non-disclosure of the police station involved.
Ratio Decidendi
The court declined to grant the ex parte conservatory and disclosure orders sought by the applicant due to the applicant's failure to disclose the police station involved in the investigation and detention. This non-disclosure was material, as it prevented the court from determining whether it had territorial jurisdiction over the dispute, which appeared to arise from a matter pending before the Mombasa Environment and Land Court. The court emphasized that it cannot usurp the jurisdiction of other courts by issuing orders in matters outside its designated territorial scope. The application was certified urgent, and directions were given for service and further filings, but no substantive...
Court Disposition
Ex parte orders declined; application certified urgent and directions issued for inter partes hearing.
Orders
- The application is certified urgent.
- Applicants/petitioners to serve the respondent with the application and court order before close of business today.
Full Case Text
Judgment text and source record
31 paragraphs
Kevin & 4 others v Directorate of Criminal Investigations (Criminal Petition E002 of 2025) [2025] KEHC 1843 (KLR) (24 February 2025) (Ruling)
Neutral citation: [2025] KEHC 1843 (KLR)
Republic of Kenya
In the High Court at Kibera
Criminal Petition E002 of 2025
DR Kavedza, J
February 24, 2025
Between
Oichoe Hans Kevin
1st Petitioner
Zahra Salim Darvesh
2nd Petitioner
Imran Husseinali Sherali
3rd Petitioner
Fatmabhai Sherali Esmail
4th Petitioner
Farhan Salim Darveshi
5th Petitioner
and
Directorate of Criminal Investigations
Respondent
Ruling
1. The 1st applicant/petitioner Oichoe Hans Kevin, has filed a Notice of Motion dated 21st February 2025, seeking protection against the respondents, the Director of Criminal Investigations. The motion is supported by the applicant's affidavit of the same date.
2. The applicant seeks an ex parte order for the immediate and unconditional release of the petitioner from custody, a conservatory order restraining the respondent from summoning, arresting, charging, or otherwise intimidating the 1st petitioner in connection with his legal work as an advocate of the High Court of Kenya and the filing of suits by the 2nd to 5th petitioners. The applicant further seeks an order compelling the respondent to disclose the nature of the complaint lodged against the petitioner, as well as the identity of the complainant.
3. The grounds of the application are, inter alia: The 1st petitioner is an advocate of the High Court of Kenya, registration number LSK/15692/19. There is a pending dispute before the Mombasa Environment and Land Court in Mombasa ELC No. E008/2024, Zahra Salim Darvesh v. Nashir Aminohamed Nathoo & 2 others, with a ruling due on 3rd April 2025 before Justice Angima. The applicant claims that the respondent has allegedly fabricated a criminal complaint related to this matter, accusing the petitioners of making false statements in a replying affidavit sworn by the 2nd petitioner on 30th April 2024. Pursuant to the complainant, the 1st petitioner was summoned by phone by Charles Odhiambo from the respondent’s operation support unit, arrested, and charged with an offence under Section 23 of the Computer Misuse and Cybercrime Act.
4. The application is brought under Articles 2, 3, 10, 19, 20, 21, 23, 27, 47, 50, 157, 159, 165, 258, and 259 of the Constitution of Kenya. The applicant contends that the respondent’s actions are a violation of his rights and fundamental freedoms, amounting to intimidation and abuse of the criminal justice system. The applicant further asserts that the harassment is intended to pressure the 1st petitioner, who was merely performing his professional duties.
5. At this juncture, the duty of this court is not to interrogate whether the applicants’ averments are true, but rather to protect his constitutional rights and fundamental freedoms guaranteed to all persons.
6. I have carefully gone through the notice of motion application and the supporting affidavit. It is clear that the applicant has withheld vital information from this court, for instance, the applicant has not disclosed the police station that is investigating the case or the police station where the applicant has been detained. I say this case because there is a dispute pending between the applicant at Mombasa ELC No. E008/2024, that seems to have given rise to the dispute herein.
7. It was imperative for the applicant to disclose the police station conducting investigations as this would have enabled this court to establish whether the dispute falls within its territorial jurisdiction. In view of the non-disclosure, I would be hesitant, to grant ex-parte orders against the against the Director of Criminal Investigations at this juncture. Kibera High Court handles disputes arising from designated police stations. I cannot for instance issue a conservatory order in a dispute that arose in Mombasa as this would usurp the jurisdiction of other courts.
8. It is for these reasons that I decline to grant orders sought and direct as follows:a.The application is certified urgentb.The applicants/petitioners are directed to serve the respondent with the application and order of this court before the close of business day today.c.Upon service, the respondent shall file a response within 7 days from the date hereof.d.The applicants/petitioners are at liberty to file a further affidavit if need be.e.The matter shall be mentioned on 4th March 2025 for directions.
RULING DELIVERED VIRTUALLY IN ABSENCE OF PARTIES THIS 24TH DAY OF FEBRUARY 2025D. KAVEDZAJUDGE