https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10883

Kibunja v Director of Public Prosecutions & 5 others (Petition E002 of 2025) [2026] KEHC 10883 (KLR) (17 July 2026) (Ruling) Neutral citation: [2026] KEHC 10883 (KLR) Republic of Kenya In the High Court at Malindi Petition E002 of 2025 M Thande, J July 17, 2026 Between Stephen Kinyanjui Kibunja Petitioner and The Director of Public Prosecutions 1st Respondent Director of Criminal Investigations 2nd Respondent Inspector General of Police 3rd Respondent and Greer Noble Ballentine 1st Interested Party Michael James Noble Ballentine 2nd Interested Party Michael Stuart Ferguson Ballentine 3rd Interested Party Ruling 1.The Petitioner filed a Petition dated 15.1.25 against the Respondents, seeking a raft of reliefs including prohibition of his investigation and prosecution in respect of the purchase of parcels known as Kilifi/Madeteni/359 and Kilifi/Madeteni/362. The Petitioner also filed an application of even date seeking the following orders: 1.Spent. 2.That pending the Hearing of the Petition herein the Honorable do issue an order for temporary stay of the Notice to attend court and take a plea on 20th January, 2025 and issued to the Applicant by WhatsApp message on 10th January, 2025. 3.That a declaration be and is hereby issued that all the acts and or by the Respondents and their agents of harassment, intimidation, questioning, investigations, charging, prosecution against the Petitioner by the Respondents amounts to an infringement against the Petitioner's constitutional rights as enshrined in the Bill of rights and are thereof unconstitutional. 4.That a declaration be and hereby issued that the actions of the 2nd and 3rd Respondents and or their agents are unfair, unreasonable, irrational, illegal and the acts of harassment, intimidation, questioning, investigations, charging, prosecution and prosecute of the Petitioner has been made in abuse of power and malice in contravention of Article 47 of the constitution and sections 4,5 7 7 of the Fair Administrative Actions Act. 5.That an order of prohibition directed against the 1st and 2nd Respondent and or their agents from lodging, preferring charges or in any other way attempting to implicate the Petitioner from all matters as it relates to the purchase of the parcels known as Kilifi/Madeteni/362 and Kilifi/Madeteni/359. 2.The grounds upon which the Application is premised are set out in the Application and in the affidavit of the Petitioner sworn on even date. The Petitioner stated that he is an advocate of this Court and has practiced as such for 44 years without blemish. He stated that the 1st Interested Party Greer Noble Ballentine (Greer) had an issue with land she had purportedly purchased from one Ismael Kasera (Kasera) through Muli & Ole Kina Advocates; that he did a search on the property and found that Kasera had no title as the land belonged to the Government; that Greer entered into negotiations with 2 local residents of Matsangoni who applied for the property to the Ministry of Lands & Settlement; that he was on 27.5.21 instructed by Greer to prepare an agreement over a property between her and her husband James Noble Ballentine (James) on the one hand and one David Maingi Kithunga (David) on the other; that the agreement was clear on execution and payment timelines; that unbeknownst to him, Greer began to deal directly with, and make payments to David; that on 15.5.21 Greer instructed the Petitioner to draw up and agreement between her and Anderson Thuva Chongome (Anderson) for the purchase of a property known as Section Madeteni/359; that all payments were to be made to Anderson directly; that payments were made without regard to the timelines in the agreement and without informing the Petitioner; that the Petitioner received further instructions and entered into a legal service agreement. 3.The Petitioner further states that as the land still belonged to the Government, he commenced the long process and made Greer understand the complexities of the process; that in spite of this, Greer was impatient and started sending nasty emails and WhatsApp messages to the Petitioner; that when he told her that he was not keen on acting for her, she demanded her files and a refund of Kshs. 117,000/= which she claimed to have overpaid the Petitioner; that by an email dated 10.6.22, Greer revised the sum to Kshs. 350,000/=; that thereafter, Greer appointed the firm of Muli & Ole Kina to take over all her matters and the Petitioner released her files upon payment of Kshs. 50,000/= which Greer owed him. 4.The Petitioner states that shortly after, he was summoned by Watamu Police Station on allegations that he had defrauded Greer of Kshs. 8,000,000/= and recorded a statement; that he was summoned to Malindi DCI on allegations that he had defrauded Greer of Kshs. 7,000,000/= and recorded a statement; that he recorded statements at DCI Kilifi and with DCI officers from headquarters who visited him; that Greer filed MCCC E198 of 2023 against the Petitioner claiming the sum of Kshs. 4,847,334/= to which he filed and defence and counterclaim based on libel and defamation; that that Greer has employed delaying tactics in the matter. 5.The Petitioner contends that the investigating officer has been compromised and that the investigations are solely intended to arrest, intimidate and embarrass him with a view to aiding Greer in the civil case; that the Kilifi DPP has made a decision not to charge the Petitioner due to insufficiency of evidence but that a request was made for further investigations in December 2024 without any further statements being taken from him; that Phoenix Oduya demanded Kshs. 100,000/= from the Petitioner to assist him in the matter, which he refused; that the Petitioner has now been served with summons to take plea in Kilifi Criminal Case No. E019 of 2025 yet the charges have been committed in Malindi. 6.The Petitioner states that the charges according to the impugned notice are obtaining money by false pretences contrary to Section 323 of the Penal Code and conspiracy to defraud contrary to section 317 of the Penal Code. His case is that there has been infringement of his constitutional rights and there remains substantial threat to his safety, that of his family and his business. He urged that the orders sought be granted. 7.The Application is opposed by the 1st Respondent vide a replying affidavit sworn on 18.2.25, by No. 102193 PC Phoenix Oduya, the investigating officer. On her part, Greer filed a replying affidavit which she swore on 18.3.25 in opposition to the Application. 8.These replying affidavits are impugned by the Petitioner in his further affidavit sworn on 1.4.25, for violating the provisions of the Oaths and Statutory Declarations Act. 9.It is necessary to consider the challenge to the replying affidavits at this preliminary stage. 10.The Applicant contends that the 1st Respondent’s replying affidavit is incurably defective for purportedly being sworn in Kilifi and commissioned in Nairobi. 11.Section 5 of the Oaths and Statutory Declarations Act provides as follows:Every commissioner for oaths before whom any oath or affidavit is taken or made under this Act shall state truly in the jurat or attestation at what place and on what date the oath or affidavit is taken or made. 12.I have looked at the jurat of the said replying affidavit. It indicates that it was sworn in Kilifi. However, the stamp of the commissioner for oaths has an address of Nairobi. It is not possible for a deponent to swear an affidavit in Kilifi before a commissioner for oaths in Nairobi. 13.In Regina Munyiva Ndunge vs. Kenya Commercial Bank Limited (2005) eKLR, the Court stated as follows regarding an affidavit sworn in a place different from where it was commissioned:If the affidavit was sworn at Machakos, it should have been before a Commissioner for Oaths in Machakos and the stamp should show likewise. The only conclusion one can reach on looking at this affidavit is that the place the affidavit was sworn and where it was commissioned are two different places. That is irregular and unacceptable and that affidavit is, therefore, fatally defective as it was not sworn in the presence of a Commissioner for Oaths. It is likely that the stamp was just affixed. This court should have no alternative but strike off the replying affidavit as it is not properly commissioned and that the application would stand unopposed. 14.The replying affidavit having purportedly been sworn in Kilifi before a commissioner for oaths in Nairobi is fatally defective for want of compliance with the requirements of Section 5 of the Oaths and Statutory Declarations Act. It is very likely that the stamp was just affixed. The replying affidavit was not properly commissioned and is not an affidavit at all. In the premises, the same is struck out. 15.As regards Greer’s replying affidavit, the Petitioner contends that she did not appear before Vincent Mogaka Nyaboga, advocate whose stamp appears in the jurat. 16.I have seen the affidavit sworn on 1.4.25, by Vincent Mogaka Nyaboga, in which he denied commissioning the said affidavit. He further averred that Greer is not known to him. In light of this, the Court finds that Greer’s replying affidavit was not sworn before a commissioner for oaths and is therefore not an affidavit at all. It is accordingly also struck out. 17.The Court has considered the Application, the Petitioner’s affidavit and submissions as well as the authorities cited. The issue for determination is whether the Petitioner has met the threshold for the grant of conservatory orders. 18.It is noted that prayers 3 and 4 for declarations of infringement of the Petitioner’s rights and contravention of the Constitution and the Fair Administrative Action Act. These prayers are final in nature and have also been sought in the pending Petition. I must therefore caution myself not to make definite and final findings thereon, before parties have been heard substantively, which would prejudice the main Petition. In this regard, I follow the reasoning of Ibrahim, J. (as he then was) in the case of Muslims for Human Rights (Muhuri) & 2 others v Attorney General & 2 Others [2011 eKLR where he stated:The court must be careful for it not to reach final conclusions and to make final findings. By the time the application is decided, all the parties must still have the ability and flexibility to prosecute their cases or present their defences without prejudice. There must be no conclusivity or finality arising that will or may operate adversely vis- a-vis the case of either parties. This principle is similar to that in temporary at or interlocutory injunctions in civil matters. 19.The Court can at this stage only deal with prayer 2 which seeks conservatory relief. 20.Article 23 of the Constitution has conferred upon this Court, the authority to uphold and enforce the Bill of Rights and grant appropriate relief as follows: 1.The High Court has jurisdiction, in accordance with Article 165, to hear and determine applications for redress of a denial, violation or infringement of, or threat to, a right or fundamental freedom in the Bill of Rights. 2.… 3.In any proceedings brought under Article 22, a court may grant appropriate relief, including––(a)a declaration of rights;(b)an injunction;(c)a conservatory order;(d)a declaration of invalidity of any law that denies, violates, infringes, or threatens a right or fundamental freedom in the Bill of Rights and is not justified under Article 24;(e)an order for compensation; and(f)an order of judicial review. 21.A conservatory order is one of the appropriate reliefs available to a party who alleges and proves denial, violation or infringement of, or threat to, a right or fundamental freedom in the Bill of Rights. The purpose of conservatory orders is to preserve the substratum of a petition before court, pending the hearing and determination of the same. Rule 23 of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013 provides that despite any provision to the contrary, a Judge before whom a petition is presented shall hear and determine an application for conservatory or interim orders. 22.The threshold for the grant of conservatory orders was established by the Supreme Court in the case of Gatirau Peter Munya v Dickson Mwenda Kithinji & 2 others [2014] eKLR as follows:(86)“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.(87)The issue before us, therefore, is whether this is a proper case where the interlocutory reliefs sought by the applicant should be granted. The principles to be considered before a Court of law may grant stay of execution have been crystallized through a long line of judicial authorities at the High Court and Court of Appeal. Before a Court grants an order for stay of execution, the appellant, or intending appellant, must satisfy the Court that:(i)the appeal or intended appeal is arguable and not frivolous; and that(ii)unless the order of stay sought is granted, the appeal or intended appeal, were it to eventually succeed, would be rendered nugatory.(88)These principles continue to hold sway not only at the lower Courts, but in this Court as well. However, in the context of the Constitution of Kenya, 2010, a third condition may be added, namely:(iii)that it is in the public interest that the order of stay be granted.(89)This third condition is dictated by the expanded scope of the Bill of Rights, and the public-spiritedness that run through the Constitution. 23.A party seeking conservatory orders must demonstrate to the Court that first, the petition is arguable and not frivolous. Second that unless the orders sought are granted, the suit, were it to succeed, would be rendered nugatory. Though linked to injunctions in private party matters, these 2 limbs are also applicable in public law. The Supreme Court added the third test in the context of the Constitution, namely, that it is in the public interest that the orders sought are granted. 24.In the instant case, the Petitioner in prayer 2 seeks an order for temporary stay of the Notice to attend court and take a plea on 20th January, 2025 and issued to the Applicant by WhatsApp message on 10th January, 2025. 25.Article 157(1) of the Constitution establishes the Office of the 1st Respondent. Under Clause (6) and Section 5(1)(b) of the Office of the Director of Public Prosecutions Act, the 3rd Respondent exercises State powers of prosecution and may institute and undertake criminal proceedings before any court (other than a court martial), take over and continue any criminal proceedings commenced in any court and discontinue any criminal proceedings at any stage before judgment is delivered. Article 157(10) and Section 6 of the Act insulates the 1st Respondent from interference from any quarter and stipulates that the 1st Respondent shall not require the consent of any person or authority for the commencement of criminal proceedings and in the exercise of his or her powers or functions, shall not be under the direction or control of any person or authority. This independence is however not absolute. Under Article 157(11), the 1st Respondent is required in the discharge of the aforesaid mandate, to have regard to the public interest, the interests of administration of justice and the need to prevent and avoid abuse of the legal process. 26.It is well settled that constitutional and statutory bodies such as the 1st Respondent, must be given the space to discharge their mandate and to exercise their discretion in doing so. In the case of Tom Dola & 2 others v Chairman, National Land Commission & 5 others [2020] eKLR the Court of Appeal spoke to this issue and stated:In Pevans East Africa Ltd & Another v. Chairman, Betting Control & Licensing Board & 7 Others [2018] eKLR, this Court emphasised, and we reiterate, that where the Constitution has vested specified functions in a state institution or organ, the courts will not readily interfere with the discharge of that mandate unless it is demonstrated that the institution or organ in question has acted ultra vires or in breach of the Constitution or the law. 27.As regards stay of a criminal process, Odunga, J. (as he then was) in Republic v Director of Public Prosecutions & 2 others exparte Gerald Chege Gaitho & another [2016] KEHC 7292 (KLR) stated:The circumstances under which the Court will grant stay of a criminal process in these kinds of proceedings is now well settled. The Court ought not to usurp the Constitutional mandate of the Director of Public Prosecutions to investigate and undertake prosecution in the exercise of the discretion conferred upon that office…However, if the applicant demonstrates that the criminal proceedings that the police intend to carry out constitute an abuse of process, the Court will not hesitate in putting a halt to such proceedings. 28.The Petitioner’s complaint as I understand it is that the charges are maliciously instigated by Greer. His annexures indeed show that they have had a rather stormy advocate/client relationship leading to a fall out. He stated that the police summoned him and he recorded statements in Watamu, Marereni and Kilifi following reports by Greer. He further recorded a statement with DCI officers from Nairobi. The Petitioner further contends that he resides and works in Malindi and that the incidents took place in Malindi. As such, any charges against him ought to be preferred in the Malindi and not Kilifi courts. He thus contends that as a result of this, there has been infringement of his constitutional rights and there remains substantial threat to his safety, that of his family and his business. He urged that the orders sought be granted. 29.Our courts have stated in many a case that the acts of arrest and prosecution do not in and of themselves constitute violation of constitutional rights, unless they have been done maliciously or excess of jurisdiction. One such case is Cape Holdings Limited v Attorney General & Another [2012] eKLR, where Warsame, J. (as he then was) stated:My understanding of the law is that the responsibility to investigate, determine the credibility of the complaint and prosecution is solely left for the police under the direction and control of the Director of Public Prosecution. The predominant factor being that they must act in accordance with the law and so long as they do not exceed the limits, then a court should not prohibit the prosecution of an individual. The investigation of a criminal offence or complaint cannot be easily prohibited or stopped unless there is credible and reasonable evidence to show the same is mounted for an ulterior purposes or objectives.The applicant has failed to demonstrate that the Police lack or acted in excess of jurisdiction or have not complied with the rules of natural justice. In my view it is outside the jurisdiction of this court to supervise how the police should conduct its investigations unless there is evidence to show that the investigation is being conducted in a manner to prejudice the rights and the interests of the applicant. The police should be allowed to investigate the complaint lodged by the interested party to its logical conclusion and it is now premature for me to determine whether there is any abuse being committed against the applicant. 30.As indicated herein, the 1st Respondent has the constitutional and statutory mandate to institute and undertake, take over and continue any criminal proceedings before any court. The complaint against the petitioner has been made by Greer who like any other person in the Republic of Kenya is entitled to the full protection of the law and to report any complaint of wrong doing to the police for investigation. 31.From the material placed before me, it has not been demonstrated by the Petitioner that the decision of the 1st Respondent to charge him, was not done in the lawful exercise of his constitutional and statutory mandate. It has also not been demonstrated that in the exercise of his mandate, the 1st Respondent disregarded the public interest, the interests of administration of justice and the need to prevent and avoid abuse of the legal process. Similarly, the Petitioner’s claim of violation of his rights and threat to his safety, that of his family and his business alleged has not been supported by evidence to warrant this Court’s intervention at this stage. In light of this, I find that it is outside the jurisdiction of this Court to supervise how the 1st Respondent discharged its mandate in the matter herein. As regards the choice of court in which to charge the Petitioner, I am of the view that this is challenge can be raised and competently handled in the trial court. 32.This Court will only stay criminal proceedings where violation of the fundamental rights of individuals facing trial is clearly demonstrated. This was the holding of in Kipoki Oreu Tasur v Inspector General of Police & 5 others [2014] eKLR Ngugi, J. (as she then was). The learned Judge stated:The criminal justice system is a critical pillar of our society. It is underpinned by the Constitution, and its proper functioning is at the core of the rule of law and administration of justice. It is imperative, in order to strengthen the rule of law and good order in society, that it be allowed to function as it should, with no interference from any quarter, or restraint from the superior Courts, except in the clearest of circumstances in which violation of the fundamental rights of individuals facing trial is demonstrated. 33.For the reasons stated, I am of the view that to grant the orders sought will militate against the public interest and undermine the administration of justice. 34.The upshot is that the Application dated 15.21.25 lacks merit and is hereby dismissed. Costs in the cause. DATED SIGNED AND DELIVERED IN MALINDI THIS 17TH DAY OF JULY 2026M. THANDEJUDGE