https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10285

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT NAIROBI** **MILIMANI LAW COURTS** **CONSTITUTIONAL AND HUMAN RIGHTS DIVISION** **PETITION NO. E535 OF 2025** **JOSHUA KIMAITA .................................................................1ST PETITIONER** **SUPER DRILL INTERNATIONAL LIMITED ....................2ND PETITIONER** **VERSUS** **DIRECTOR OF PUBLIC PROSECUTIONS.......................1ST RESPONDENT** **INSPECTOR GENERAL OF POLICE................................2ND RESPONDENT** **DIRECTOR OF CRIMINAL INVESTIGATIONS.............3RD RESPONDENT** **CHIEF MAGISTRATE’S COURT AT MILIMANI...........4TH RESPONDENT** **PINNACLE BUSINESS SCHOOL LIMITED ....................5TH RESPONDENT** **CLIFFORD OTIENO.............................................................6TH RESPONDENT** **JOSEPH GIKONYO ..............................................................7TH RESPONDENT** **RULING ON APPLICATION FOR STAY OF CRIMINAL PROCEEDINGS** 1. This Ruling determines the petitioners’ two applications dated 2nd September, 2025 and 12th February, 2026. Both applications seek stay of criminal proceedings against the 1st petitioner as mounted by the prosecution vide **Milimani MCCR Case No. E417 of 2025** pending the hearing and determination of the petition dated 20th August 2025. 2. The petitioners’ case is that on or about the 12th day of August 2025, the 1st petitioner was charged with various offences under the Penal Code being- forgery, jointly with one David Omondi Opondo and that warrants of arrest had since been issued against the 2nd petitioner. 3. The two Petitioners contend, material to this application, that the charges levelled against the 1st petitioner are unfounded and are based on an abuse of power by the investigative and prosecutorial agencies named herein as the 1st, 2nd and 3rd respondents considering that they arise out of a commercial dispute which is pending in Court vided Kajiado ELC E011 of 2025 between the 5th respondent and the 2nd petitioner herein, concerning a loan agreement where the 6th and 7th respondents engaged the petitioners as guarantors and took up the loan from K-REP Bank ( now Sidian Bank) to the tune of Kshs 120,000,000. 4. That the petitioners though accepted to be guarantors to the said loan, they never benefited from the loan advanced to the 6th and 7th respondents and that therefore the Criminal charges mounted against the 1st petitioner vide Milimani MC Criminal Case No. E417 of 2025 should be stayed pending the hearing and determination of the petition here. 5. The 1st, 2nd and 3rd respondents filed an affidavit opposing the application. The affidavit is sworn by CPL Joshua Oburu on 30th January, 2026, attached to land fraud investigations unit of the DCI Headquarters and deposing that he was the investigating officer in the alleged fraud in which the 5th, 6th and 7th respondents are the complainants over fraudulent acquisition of land by the petitioners herein. 6. He deposes at length and annexes copies of documents which have been subjected to forensics examination showing that the petitioners’ acquisition of title to land parcel number Kajiado/Ntashart/1583 was fraudulently transferred on 13th September, 2017. 7. That the petitioners used the forged documents and filed a suit in Kajiado ELC 96 of 2017 and obtained orders to transfer the said land. 8. On the part of the 5th respondent, it filed a replying affidavit Joseph Kigotho Njuguna deposing that the petitioners forged a sale agreement and Directors’ Resolutions using digital manipulation as shown by annexed forensic examination report and used them to claim for and obtain judgment for title to the land belonging to the 5th respondent, being Title No. Kajiado/Ntashart/1583, through Kajiado ELC Miscellaneous Application No. 96 of 2017, which land was allegedly never sold or transferred to the 2nd petitioner or at all. 9. The 5th respondent therefore opposes the petition and the application seeking for stay of the Criminal proceedings contending that in addition, the advocates who allegedly commissioned the supporting affidavit in the Kajiado ELC matter, Mr. Peter Mugalo has disowned the alleged commissioning of the said affidavit. 10. The 5th respondent asserts that the 1st respondent has lawfully instituted criminal proceedings against the 1st petitioner because the latter after discovering massive fraudulent scheme where judicial processes were manipulated through forgeries to forcefully transfer the 5th respondent’s title to land. It maintains that the DPP is acting independently and strictly within its constitutional and statutory mandate in preferring the charges against the 1st petitioner, after thoroughly reviewing the investigations, file being Inquiry File No. 147 of 2021 and finding incontrovertible overwhelming evidence to link the petitioners to multiple criminal offences under the Penal Code being: conspiracy to defraud; making a false document; forgery; uttering a false document and perjury. 11. According to the 5th respondent, the active criminal a case is neither malicious, arbitrary nor an abuse of court process. It avers that the allegation by the petitioners that the dispute is a pure civil matter is an unmitigated attempt to immunize the 1st petitioner from criminal prosecution using this Court as a protective shield since section 193A of the Criminal Procedure Code allows civil and criminal proceedings to proceed concurrently and that therefore a person cannot commit forgery, utter a false document to a court of law, commit perjury and claim safe harbor under the guise of a commercial engagement. 12. It was asserted that in any event, the petitioner had earlier on filed a similar application for an injunction to stop the police from investigating or prosecuting them over the exact land parcel in Kajiado ELC No. E011 of 2020 and the Court, Justice M.N.Gicheru rendered a ruling on 15th November, 2023 dismissing the application and holding that the police have an unhindered mandate to carry out criminal investigations and that courts will not interfere with that mandate. They annexed copy of that ruling as annexture PBS-3. 13. It was therefore argued that the petition herein and application are *res judicata* the aforesaid ruling hence the issue of stay of criminal proceedings was settled by a court of competent jurisdiction. 14. The 5th respondent asserts that it is a victim of the petitioners elaborate digital forgery and land grabbing scheme, stands to suffer irreparable prejudice if public interest elements of this criminal prosecution are stayed. 15. The 5th respondent urges the court to let the criminal case proceed based on evidence available 16. In the oral submissions made in court on 8th July 2026, the petitioners’ counsel Mr. Kirimi submitted reiterating the grounds and depositions in support of the applications dated 2/9/2025 and 12/2/2026. 17. He maintained that the criminal proceedings should be stayed because the 5th respondent requested the 2nd petitioner to guarantee them a loan with Sidian Bank formerly K-REP Bank. 18. That the 5th respondent never paid the loan so the 2nd petitioner sought to take back the security given. That the dispute is purely a commercial dispute over the guarantee for a loan. That the criminal prosecution has been brought in bad faith and abuse of court process. That the ultimate remedy that the 5th respondent is seeking is return of their property, which can only be a remedy found in the Environment and Land Court. 19. Counsel submitted that the ongoing criminal proceedings are an abuse of court process because the DPP has advised twice that parties should seek remedy in Environment and Land Court yet the 5th respondent is not interested in Environment and Land Court remedy because it withdrew the Environment and Land Court case at Kajiado meaning, they have no interest over the land in question. He accused the DPP of not being consistent in the matter. 20. He relied on the cases of **Reuben Mwangi vs DPP** on the use of Criminal proceedings to settle personal scores and **Mwagiru & 2 others vs AG and Tatu City Pet 165/2011. Counsel urged that this C**ourt should intervene to protect rights of the petitioners. 21. **On** Section 193 A of the CPC, he relied on the **Ruaraka case (Court of Appeal) and DPP Vs Humphrey Kariuki Ndegwa and submitted thta there** is sufficient evidence that the criminal proceedings should be stayed until the court gives directions. 22. On Mr. Njuguna’s affidavit, Counsel for the petitioners submitted that there is no indication as to whether Mr. Njuguna has authority to swear the affidavit and whether he is a director of Pinnacle. That no title or document of ownership of the suit title since he had not recorded any statement. That he is a busy body. That he acknowledges the Environment and Land Court case that gave property to the petitioners and that they have come to court at eleventh hour. 23. On behalf of the 1st, 2nd and 3rd respondents, Ms Kihara submitted, relying on the replying affidavit of Sgt Joshua Oburu and argued that the threshold for grant of stay had not been met. That no illegality, abuse of office, bad faith or violation of constitutional rights had been established. She maintained that the investigations revealed forgery of a loan agreement. 24. That the petition is raising sufficiency of evidence which can be raised during the trial. She urged the Court to decline the invitation since no material evidence supports abuse of court process, arguing that it was the petitioners abusing court process because they had filed Pet E011/2020 at Kajiado High Court seeking similar orders and that the court dismissed the petition and they came to this court. L 25. Counsel submitted that litigation has to come to an end and that the DPP exercised constitutional mandate after perusal of the file and evidence satisfied mounting of criminal charges. 26. She urged the Court not to interfere with the constitutional mandate of the DPP. 27. She submitted that the nugatory test is not triggered because of proceedings starting or continuing since there is no evidence or prejudice demonstrated but that the petitioners are simply afraid of the trial. Counsel submitted that no exceptional circumstances had been shown to warrant stay. She accused the petitioners of seeking to have this court evaluate the evidence before the trial commences and urged this court not to grant stay of the criminal proceedings. 28. On behalf of the 5th respondent, Mr. Okoth submitted relying on affidavit of Joseph Njuguna. He submitted that the petitioners had not established a *prima facie* case. Counsel urged this Court not to grant stay because Justices Mugambi and Mwita declined to grant stay and that parties are litigating in Kajiado. He accused the petitioners of forum shopping, arguing that the criminal case is on forgery, perjury among others. That it is only the criminal court which can handle those criminal conducts not civil courts. 29. Counsel submitted that the criminal case is anchored on evidence as stated by the investigating officer. He contended that this petition was argued before the Environment and Land Court in Kajiado seeking to stop criminal proceedings but the judge declined to grant the orders sought. Counsel wondered why the petitioners left a competent court in Kajiado and came to Nairobi to forum shop. He maintained that the notice of motion before the court was devoid of merit and should be dismissed with costs to the respondents. 30. In a rejoinder, Mr. Kirimi submitted that they had demonstrated that if the prosecution continues, it is prejudicial to the petitioner. On alleged res judicata and forum shopping, it was submitted that the criminal proceedings were instituted by the ODPP in Nairobi for a property that is in Kajiado. 31. He denied that there was any petition or application in Kajiado Environment and Land Court, arguing that at that time, there was no charge against the petitioners. Counsel for the petitioners argued that it was the ODPP and the complainants who were forum shopping in Nairobi yet the land is in Kajiado. He maintained that the deponent for the 5th respondent is a bystander and that the claims of forgery are completely unfounded. He argued that the proper forum for the dispute between the parties is the Environment and Land Court. He urged that the criminal process be halted until the ruling for stay is delivered. **Analysis and Determination** 1. I have considered the application for stay of criminal proceedings mounted against the 1st petitioner, the responses thereto and the oral submissions. The issue for determination is whether the notice of motion is merited. 2. The principles governing the grant of conservatory orders are now well settled vide judicial pronouncements. In the case of Gatirau **Peter Munya – Versus - Dickson Mwenda Kithinji & 2 Others [2014] eKLR,** the Supreme Court of Kenya emphasized that conservatory orders are meant to safeguard constitutional values including liberty, pending determination of disputes. The Court stated as follows: ***“(i)*** ***(ii) Should Orders of Stay of Execution be granted?*** ***83.The question as to whether this Court has jurisdiction to grant inter-locutory orders in the nature of a stay of execution was long settled in Board of Governors, Moi High School, Kabarak & Another v. Malcolm Bell, SC Applications Nos. 12 and 13 of 2012, wherein the Court stated as follows (paragraph 33):“It is clear to us that if interlocutory applications are excluded as a necessary step to preserve the subject-matter of an appeal, the Supreme Court’s capability to arrive at a just decision on the merits of an appeal, would be substantially diminished. Both the Constitution and the Supreme Court Act have granted the Court the appellate jurisdiction; and within that jurisdiction, the parties are at liberty to seek interlocutory reliefs, in a proper case.”*** ***84.That leaves pending the main interlocutory matters: whether we should stay the hand of the Independent Electoral and Boundaries Commission, and the Speaker of Meru County Assembly, so they do not move to alter the state of affairs at the Meru County gubernatorial office, pending the hearing and determination of the applicant’s appeal.*** ***85.These are issues to be resolved on the basis of recognizable concept. The domain of interlocutory orders is somewhat ruffled, being characterized by injunctions, orders of stay, conservatory orders and yet others. Injunctions, in a proper sense, belong to the sphere of civil claims, and are issued essentially on the basis of convenience as between the parties, and of balances of probabilities. The concept of “stay orders” is more general, and merely denotes that no party nor interested individual or entity is to take action until the Court has given the green light.*** ***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.”*** 1. Thus, an applicant for conservatory orders must demonstrate, among other things, a *prima facie* case with a likelihood of success, that the orders sought are necessary to avert real prejudice such that the substratum of the proceedings should not be rendered nugatory and that the public interest favours the grant of the conservatory relief sought. 2. However, in determining whether those principles have been met, the Court must be careful not to determine the substantive issues reserved for the hearing of the main petition. In **Law Society of Kenya -vs- Attorney General & Judicial Service Commission (2020) eKLR**, it was stated that: “***At this stage I am alive to the fact that the court is not supposed to examine the merits of the petition but has to consider whether the petitioner has established a prima facie case to warrant interim orders of protection in order to secure the substratum of the suit and not to redder the petition herein nugatory and become a mere academic exercise.”*** 1. In proceedings such as these, an application for conservatory orders also requires the Court to maintain the delicate constitutional balance between the protection of individual rights and the discharge of statutory duties by investigative and prosecutorial agencies. This is because, the Constitution of Kenya guarantees every person the right to equal protection of the law and freedom from arbitrary State action. Equally, the Constitution obligates investigative agencies who are the National Police Service to receive complaints, investigate suspected criminal conduct and present the results of those investigations to the prosecutorial authority, the Director of Public Prosecutions for appropriate action. These constitutional mandates are complementary rather than competing. It follows, therefore, that, protection of constitutional rights cannot be achieved by disabling institutions lawfully established to investigate and prosecute persons for alleged criminal conduct. 2. It is for this reason that courts are called upon to exercise restraint before interfering with criminal investigations and prosecution. In Isaac **Tumunu Njunge v Director of Public Prosecutions & 2 others [2016] eKLR**, the court held that: ***“It is however my view that the police are clearly mandated to investigate the commission of criminal offences and in so doing they have powers inter alia to take statements and conduct forensic investigations. In order for the applicant to succeed he must show that not only are the investigations which were being done by the police are being carried out with ulterior motives but that the predominant purpose of conducting the investigations is to achieve some collateral result not connected with the vindication of an alleged commission of a criminal offence. It must always be remembered that the motive of institution of the criminal proceedings is only relevant where the predominant purpose is to further some other ulterior purpose and as long as the prosecution and those charged with the responsibility of making the decisions to charge act in a reasonable manner, the High Court would be reluctant to intervene.”*** 1. Judicial intervention is warranted only where it is demonstrated that the prosecution is undertaken without jurisdiction, in bad faith, for an ulterior purpose, abuse of power or in a manner that plainly violates the Constitution. 2. It follows therefore, that the a decision to prosecute when there is a civil case over the same subject matter of itself, does not constitute an abuse of power. To hold otherwise would transform constitutional petitions into safe havens against legitimate criminal investigations and prosecutions whenever allegations of wrongdoing are made. 3. In this case, there is an allegation of criminal conduct on the part of the petitioners. That they fraudulently caused the transfer of the 5th, 6th and 7th respondent’s title to land and that they used the aforesaid alleged fraudulent means to obtain an order of the court that enabled such transfer. 4. The investigators have availed to this Court a forensic examination report on the results of their investigations claiming that the petitioners manipulated the legal process by forging a loan guarantee agreement and the resolution of the Directors of the 5th respondent claiming that the latter had surrendered its land Parcel No. Kajiado/ Ntashart/ LR 1583 to the 2nd petitioner on account of a loan guaranteed to the 5th respondent secured from Sidian Bank Limited usisng it to manipulate the court process to obtain orders for transfer of the land in their favour without effecting any service of the pleadings upon the registered proprietors of the land in question. It is further claimed that signatures of advocates allegedly commissioning affidavit for the 1st petitioner and rubber stamps are all forgeries and all this evidence is with the DPP to be used against the petitioners. 5. Having considered the material placed before this Court, I find that the petitioners have not established that they have a prima facie case with likelihood of success. Additionally, I find that it is in the public interest that the criminal proceedings should not be halted at this stage, to allow the prosecution to place before the trial court evidence gathered on alleged fraud on the part of the petitioners. 6. I am equally not satisfied that the petition will be rendered nugatory or that the petitioners will be prejudiced if the criminal case continues. Section 193A of the Criminal procedure Code permits concurrent criminal and civil proceedings. In this case, I am not satisfied that the prosecution as mounted is outrightly an abuse of prosecutorial power. 7. On alleged bystander affidavit sworn by Mr. Joseph Kigotho Njuguna without a resolution or authority of the 5th respondent, none of the directors of the 5th respondent has challenged the deposition by the deponent that he is a shareholder or director of the 5th respondent. Mr. Njuguna swore an affidavit and at paragraph 1 stated that he was the director and shareholder of the 5th respondent company and duly authorized to swear the replying affidavit. 8. In the case of [**Spire Bank Limited v Land Registrar & 2 others [2019] eKLR**](https://kenyalaw.org/akn/ke/judgment/keca/2019/530)**,** the Court of Appeal interpreted the law concerning filing of authority and Company resolution as follows: ***“It is essential to appreciate that the intention behind order 4 rule 1 (4) was to safeguard the corporate entity by ensuring that only an authorized officer could institute proceedings on its behalf. This was to address the mischief of unauthorized persons instituting proceedings on behalf of corporations, and obtaining fraudulent or unwarranted orders from the court. The company’s seal that is affixed under the hand of the directors ensured that they were aware of, and had authorized such proceedings together with the persons enlisted to conduct them. And where evidence was produced to demonstrate that a person was unauthorized, the burden shifted to such officer to demonstrate that they were authorized under the company seal. With this in mind, we dare say that the provision was not intended to be utilized as a procedural technicality to strike out suits, particularly where no evidence was produced to demonstrate that the officer was unauthorized.”*** 1. Further, in [**Livestock Research Organization v Okoko & another (Civil Appeal 36 A of [2021] [2022] KEHC 3302 (KLR),**](http://kenyalaw.org/caselaw/cases/view/234540/)the Court of Appeal held that: ***“It is however clear from the above binding decision in the Makupa Transit Shade Limited &another v Kenya Ports Authority case that the absence of a Resolution to institute a suit or authority to swear an affidavit is not fatal to a suit. The Respondents’ contention that the appellant failed to attach a Resolution or authority to swear an affidavit is true. However, such omission was not fatal to the suit. This is because the deponent of the verifying affidavit stated on oath that he was authorized by the appellant and being the Director General of the appellant corporation, unless the contrary was shown that he had no such authority to swear the verifying affidavit, which evidence the Respondents did not adduce.”*** 1. There was no contrary evidence that Mr. Njuguna was neither a director nor authorized to swear the replying affidavit on behalf of the 5th respondent and neither has anybody complained and therefore if the petitioners had an issue then they should have given evidence to counter the allegation that he had such authority. I find that the 5th respondent’s affidavit in reply sworn on 6th July, 2026 is properly and competently before the court. 2. Finally on the ruling by Justice M. Gicheru in Kajiado ELC E011 OF 2020 and alleged forum shopping, this Court reserves any findings of *res judicata* and forum shopping by the petitioners for the main petition. 3. In conclusion, an applicant seeking conservatory orders to stay a criminal prosecution must ordinarily establish a *prima facie* constitutional case; a real risk of prejudice if the prosecution proceeds; that the prosecution is unlawful, unconstitutional, malicious, or an abuse of process; that the balance of public interest and proportionality favours intervention; and that the case presents exceptional circumstances justifying the court's interference with the prosecutorial process. 4. Since the decision to halt a prosecution directly affects the administration of criminal justice, that such orders are granted sparingly and only on clear and compelling grounds. I have not found those compelling grounds to warrant grant of stay of the criminal proceedings which are impugned. I decline to issue any conservatory orders sought to stay Milimani CM CR Case E417 OF 2025 and dismiss the two notices of motion dated 2nd September, 2025 and 12th February, 2026 respectively. **Dated, Signed and Delivered virtually at Nairobi this 10th Day of July, 2026** **R.E ABURILI** **JUDGE**