Kimani v Inspector General of Police & 3 others (Constitutional Petition E049 of 2024) [2026] KEHC 12735 (KLR) (7 August 2026) (Judgment)

Kimani v Inspector General of Police & 3 others (Constitutional Petition E049 of 2024) [2026] KEHC 12735 (KLR) (7 August 2026) (Judgment) Neutral citation: [2026] KEHC 12735 (KLR) Republic of Kenya In the High Court at Mombasa Constitutional Petition E049 of 2024 J Ngaah, J August 7, 2026 Between Paul Kiarie Kimani Petitioner and Inspector General of Police 1st Respondent Director Criminal Investigations 2nd Respondent Director of Public Prosecutions 3rd Respondent Kongo Mohamed Muinga 4th Respondent Judgment Introduction 1.The petitioner, Paul Kiarie Kimani, stands charged before the Chief Magistrate’s Court at Mombasa in Criminal Case No. E1252 of 2023 with the offence of obtaining money by false pretences contrary to section 312 as read with section 313 of the Penal Code (Cap 63). The particulars are that, on diverse dates between the 20th and 21st days of July 2023 at Port Reitz within Changamwe Sub-County in Mombasa County, with intent to defraud, he obtained Kshs 1,200,000/= from the 4th respondent, Kongo Mohamed Muinga, by falsely pretending that he was in a position to transport six trucks of sea salt from Malindi to Kampala, a fact he well knew to be false. 2.By his petition filed on 23rd August 2024 the petitioner moves this court, under Articles 22 and 23 of the Constitution, to arrest that prosecution. His central complaint is that the criminal charge is a mask for what is, in truth, a commercial dispute over the performance of a contract of carriage; that the ingredients of the offence charged are, on the very material assembled by the prosecution, absent; and that the machinery of the criminal law has been set in motion by and at the behest of the 4th respondent for the ulterior purpose of coercing him to make good monies that are properly the subject of an ordinary contractual claim. 3.The petition is directed against the Inspector-General of Police (1st respondent), the Director of Criminal Investigations (2nd respondent) and the Director of Public Prosecutions (3rd respondent), the offices in which the investigative and prosecutorial powers of the State are reposed, and against the complainant, Kongo Mohamed Muinga (4th respondent), at whose instance those powers are said to have been deployed. The Petitioner’s Case 4.The petitioner’s case is deposed to in his supporting affidavit sworn on 22nd August 2024, together with a further affidavit verifying urgency of even date, and is amplified by the documents annexed and marked “PKK-1” to “PKK-11”. It is a notable feature of the petition that several of those annexures are, on the petitioner’s account, drawn from the very bundle of documents served upon him by the prosecution. 5.The petitioner is the director and sole shareholder of Bypass Corporation Limited, a company incorporated on 17th April 2020, which carries on the business of arranging the transportation of cargo within the East and Central Africa region; and in proof of this he has exhibited copies of the certificate of incorporation and a Business Registration Service letter confirming his shareholding. 6.In early July 2023 the 4th respondent approached Bypass Corporation Limited to arrange the carriage of a consignment of salt from Malindi to Kampala for the consignee, Glorre International Limited. To that end, the petitioner says, a written transport contract dated 10th July 2023 was executed between Bypass Corporation Limited (as “Transporter”) and the 4th respondent (as “Client”). The contract is said to have fixed the haulage rate, payable as to 70% on loading and the balance before offloading; to have provided for demurrage beyond forty-eight hours; and, at Article 3, to have expressly reserved to the transporter the right to assign or outsource execution of the contract in whole or in part while remaining liable for delivery. 7.Bypass Corporation Limited in turn subcontracted the carriage to Edken Ventures Limited by a transport contract dated 12th July 2023, and Edken Ventures Limited subcontracted Universe Freight Services Limited, which supplied the six trucks, three registered in its own name and three outsourced. The petitioner summarises the resulting chain thus: the consignee, Glorre International Limited, contracted the 4th respondent; the 4th respondent contracted Bypass Corporation Limited; Bypass subcontracted Edken Ventures Limited; and Edken subcontracted Universe Freight Services Limited. 8.According to the petitioner the six trucks were duly sourced and the salt was in fact carried to, and reached, Kampala. Offloading, however, could not be completed. The reason, he says, lay not in any failure to transport the cargo but in a dispute over payment: the 70% advance was not paid in full and in good time, being settled only after the trucks had arrived in Uganda, thereby occasioning demurrage, and the 30% balance fell due only on arrival and remained outstanding, save also for a shortfall on the advance. 9.The petitioner lays particular emphasis on the source of the Kshs 1,200,000/= said in the charge to have been obtained from the 4th respondent. He deposes that this sum was paid into the Bypass Corporation Limited account at Equity Bank (account no. 0250279789421) not by the 4th respondent but by Modco General Contractors Limited, a distinct legal person with which he had no contract; and he relies on the bank statement as reflecting the credits and a substantial outward transfer to Edken Ventures Limited. He deposes further that, while the 4th respondent’s statement to the police asserts that the 4th respondent is a director of Modco, the Business Registration Service record lists the directors of Modco as Ramadhan Omara and Said Annan, and not the 4th respondent, a matter he characterises as a false representation made to the investigators. 10.The petitioner also relies on the 4th respondent’s own statement to the police dated 28th September 2023, in which the 4th respondent is said to state that whenever he secures a contract to transport goods he sources trucks from friends and other companies, a mode of dealing, the petitioner says, indistinguishable from, and consistent with, the very outsourcing on which the criminal charge is founded. He points, finally, to a demand by Edken Ventures Limited’s advocates upon Bypass Corporation Limited for a sum together with delay charges, and to a letter from Universe Freight Services Limited offering to release the six trucks upon a final payment of Kshs 1,317,900/=, as demonstrating that the dispute is, from end to end, one of competing contractual claims over money. 11.On that foundation the petitioner contends that no ingredient of the offence of obtaining by false pretences is disclosed. The salt having been transported to Kampala, the representation said to be false, that he was in a position to transport it, is, he says, shown by the prosecution’s own material to be true; the money was not obtained from the complainant at all; and what remains is an unfulfilled contractual expectation as to payment, which is a civil and not a criminal matter. 12.The petitioner further pleads that the decision to investigate and to charge him amounts to an abuse of the investigative and prosecutorial powers of the State and a violation of his fundamental rights and freedoms, namely: his right to freedom from psychological torture under Article 29(d); his right to equal protection and equal benefit of the law under Article 27(1) and (2), the prosecution being said to be oppressive, inequitable and discriminatory in that the outsourcing treated as fraudulent is the 4th respondent’s own mode of dealing and conformed to the terms of the contract; and his right to the protection of the law, the criminal process being deployed to compel him to make good losses arising from the complainant’s own breaches of a civil contract. 13.The petitioner prays for orders that:(a)a declaration issue that the decision to prosecute him for the offence of obtaining money by false pretences, in the circumstances of this case, constitutes a contravention of his right to the protection of the law and an abuse of the powers vested in the 1st, 2nd and 3rd respondents;(b)a declaratory order issue directed at the Chief Magistrate’s Court at Mombasa terminating the proceedings in Mombasa Criminal Case No. E1252 of 2023;(c)he be awarded damages for the violation of his fundamental rights; and(d)he be granted interest. The Respondents’ Response 14.The 1st, 2nd and 3rd respondents, the Inspector-General of Police, the Director of Criminal Investigations and the Director of Public Prosecutions, opposed the petition. Their response is contained in a replying affidavit sworn on 7th October 2024 by No. 83878 Corporal Guylord Amayamu, the officer of the Directorate of Criminal Investigations at Changamwe charged with the investigation, to which are annexed the documents marked “GA-1” to “GA-15”. The 4th respondent, the complainant, did not file a separate response, and the record before me discloses none on his part. 15.The investigating officer deposes that the matter under investigation is one of obtaining money by false pretences contrary to section 312 as read with section 313 of the Penal Code, reported by the 4th respondent at Changamwe Police Station under OB No. 39/27/07/2023. The account to which he deposes differs from that of the petitioner in several material respects, and may be summarised as follows. 16.The 4th respondent was introduced to the petitioner by one Juma Nyundo Baya for the carriage of a consignment of sea salt from Mombasa to Kampala. The petitioner held out his company, Bypass Corporation Limited, as able to perform the carriage, furnished its particulars and its Equity Bank account number (0250279789421), and the parties agreed a rate of Kshs 10,500 per tonne for six trucks; on the officer’s account no formal written agreement was executed between the petitioner and the 4th respondent, their dealing being conducted by telephone. Upon that footing the sum of Kshs 1,200,000/= was paid into the Bypass Corporation Limited account. Crucially, the investigating officer deposes that this payment was made, on the instructions of the 4th respondent, by his son Said Annan (whom the petitioner describes as a director of Modco General Contractors Limited, but whom the respondents assert to be the son of the complainant) paying at the complainant’s direction and the Pesalink transfer receipts exhibited (GA-4 and GA-5) record the payer as Said Annan. 17.The officer deposes that, having received the Kshs 1,200,000/=, the petitioner did not apply it to discharge the carriers. On the respondents’ account, he remitted only Kshs 240,100/= down the chain to Edken Ventures Limited, so that when the six trucks reached Kampala the owner of the trucks, Universe Freight Services Limited, declined to offload the salt for want of payment. The petitioner is said thereupon to have switched off his telephone and to have left the drivers stranded in Uganda for thirteen days; and the consignee, a Kampala businessman named as Mr. Lakhan, was constrained to pay Universe Freight Services Limited afresh, a sum of Kshs 1,275,900, in order to secure release of the salt, the complainant being thereafter left exposed to a demand that he refund the Kshs 1,200,000/=. It is on this footing that the respondents contend that a false pretence and an intent to defraud are disclosed: that the petitioner obtained the entrusted sum by holding himself out as able and willing to procure and pay for the carriage, and then diverted the greater part of it. 18.The investigating officer further deposes to the course of the investigation and of the criminal proceedings. The petitioner was arrested on 30th July 2023 and charged; he was released on cash bail of Kshs 30,000/= on 31st July 2023 after undertaking to settle the matter; Miscellaneous Criminal Application No. E407 of 2023 was taken out to establish the transaction through the parties’ bank records; and enquiry of the Registrar of Companies established the petitioner to be the sole director of Bypass Corporation Limited, contrary, it is said, to his assertion that the company had several directors. As to the conduct of the criminal case, the officer deposes that the petitioner, having initially attended court and participated in a pre-trial, thereafter absented himself: the matter was fixed for hearing on 26th and 27th February 2024 but the petitioner absconded; a warrant of arrest issued against him on 11th April 2024; warrants issued against him and his surety, which remain in force; and on 10th July 2024 the trial court directed that the witnesses be bonded and the matter proceed to hearing on 3rd October 2024 in his absence. It is the respondents’ case that the present petition was filed to forestall that hearing. 19.As to the petitioner’s contention that the Kshs 1,200,000/= was paid by Modco General Contractors Limited and not by the complainant, the respondents’ answer is that Said Annan, through whom the payment passed, is the son of the 4th respondent, so that the funds emanated from the complainant’s side of the transaction. The respondents contend that the investigation and the charge were undertaken in the lawful exercise of the statutory mandate of the police and of the Director of Public Prosecutions, and that the petitioner’s true object is to arrest a criminal process which he is himself evading. They pray that the petition be dismissed with costs and that Mombasa Criminal Case No. E1252 of 2023 be permitted to proceed to its conclusion. Submissions 20.Both the petitioner and the 1st, 2nd and 3rd respondents filed written submissions, which I have read and taken into account. The petitioner’s submissions were filed on 18th July 2025 through the firm of Moses Mwakisha & Company, Advocates, and the submissions of the 1st, 2nd and 3rd respondents, settled by the office of the Honourable Attorney General, are dated 10th December 2025. The 4th respondent, who filed no response, likewise filed no submissions. 21.For the petitioner it was submitted that the dispute is, in substance, a civil one that has been given the garb of a crime. Drawing on the prosecution’s own material, counsel posed three questions which are whether the six trucks of salt in fact arrived in Kampala; at whose effort they got there; and who, if anyone, is the proper complainant. He answered that the salt was delivered, that its delivery was procured through the chain of subcontracts set in motion by the petitioner (counsel pointing to evidence of a payment of Kshs 600,000/= made by the petitioner to Edken Ventures Limited), and that any grievance over the balance of the freight lies between the petitioner and those he subcontracted, and not the 4th respondent. Counsel further submitted, upon the complainant’s own statement, that the rate agreed was Kshs 10,500/= per tonne and that each of the six vehicles carried 28 tonnes, amounting to Kshs 280,000/= per vehicle and Kshs 1,764,000/= in all that a balance was in fact due to the petitioner against the Kshs 1,200,000/= received, so that what remains is at most an arithmetical dispute arising out of a contract that had admittedly been performed. It was also submitted that the 4th respondent had misrepresented himself to the investigators as the owner of Modco General Contractors Limited when the record (CR12) shows him to be neither its director nor its shareholder, and that the proper complainant, if any, would be Edken Ventures Limited, whose advocates had in turn demanded payment from the petitioner. 22.On that footing counsel submitted that the invocation of the criminal process is an abuse by the 1st, 2nd and 3rd respondents of their investigative and prosecutorial powers, deployed at the behest of the 4th respondent to coerce the petitioner in a matter that is commercial from end to end, in violation of his right to the protection of the law and of his rights under Articles 22, 23, 27 and 29(d) of the Constitution. Counsel candidly acknowledged the body of authority by which this court ordinarily defers to the trial court, and that relief will not lie merely because the subject matter of a criminal process also sounds in civil law; but he submitted that where the material on which the prosecution is founded, tested against settled principle, manifests a purely civil or contractual dispute, the court is entitled to intervene and to arrest the process. 23.In support, the petitioner relied upon the decision of the High Court of Judicature at Patna in Binod Kumar v State of Bihar & Another (2024 Latest Caselaw 2626 Patna) for the propositions that a complaint may be quashed where the allegations, taken at face value, do not prima facie constitute any offence, and where the proceedings are a clear abuse of process instituted with mala fides or to wreak vengeance; and upon the decision of the Supreme Court of India in Indian Oil Corporation v NEPC India Ltd & Others ((2017) ibclaw.in 181 SC), together with G. Sagar Suri v State of Uttar Pradesh [2000] 2 SCC 636, for the caution against a growing tendency in business circles to convert purely civil disputes into criminal cases, and the principle that a matter essentially of a civil nature should not be given the cloak of a criminal offence. He accordingly prayed that the petition be allowed and the charge quashed or terminated. 24.For the 1st, 2nd and 3rd respondents it was submitted that they are creatures of statute who acted strictly within the bounds of their enabling law. Counsel relied on section 35 of the National Police Service Act, which charges the Directorate of Criminal Investigations with, among other functions, the investigation of serious and economic crimes, and on the constitutional mandate of the Director of Public Prosecutions under Article 157. It was submitted that the 4th respondent, aggrieved, reported the matter at Changamwe Police Station under OB No. 39/27/07/2023; that the investigating officer conducted a thorough investigation and recommended the charge; and that the decision to arrest, charge and prosecute falls squarely within the mandate of the police and of the Director of Public Prosecutions, exercised without malice, ill-will or spite. If the petitioner is innocent, counsel submitted, the trial court will acquit him; but to terminate the proceedings now would visit injustice upon the 4th respondent, who reported the matter and has not withdrawn his complaint. 25.Counsel drew attention to Article 157(4), (6), (10) and (11) of the Constitution, emphasising the independence of the Director of Public Prosecutions, his freedom from the direction or control of any person in the exercise of his powers, and his duty to have regard to the public interest, the interests of the administration of justice and the need to prevent and avoid abuse of the legal process. It was submitted that Miscellaneous Criminal Application No. E407 of 2023 had established that the petitioner received the Kshs 1,200,000/= from the 4th respondent; that the petitioner, having been admitted to bail, absconded when the matter was fixed for hearing on 26th and 27th February 2024, whereupon warrants of arrest issued; and that the criminal case remains active. The petitioner’s true object, it was said, is to stifle the due process of the law. The 1st, 2nd and 3rd respondents accordingly prayed that the petition be dismissed with costs and that Mombasa Criminal Case No. E1252 of 2023 be allowed to proceed to its logical conclusion. Issues for Determination 26.Having considered the petition, the supporting and verifying affidavits, the replying affidavit of the investigating officer and the annexed record, together with the written submissions of counsel, I take the view that the following issues fall for determination:(a)whether this court has jurisdiction to interrogate, and in a proper case to halt, an ongoing criminal prosecution, and the threshold to be met;(b)whether the prosecution of the petitioner in Mombasa Criminal Case No. E1252 of 2023 is an abuse of the criminal process, that is to say, whether the matter is in substance a civil dispute clothed in the language of the criminal law;(c)whether the impugned decision violates the petitioner’s fundamental rights and freedoms; and(d)what reliefs, if any, ought to issue, and as to costs. Analysis and Determination (i) Jurisdiction and the threshold for interfering with a prosecution 27.The point of departure is the constitutional mandate of the Director of Public Prosecutions. Under Article 157(6) of the Constitution the Director is vested with State powers of prosecution, including the power to institute and undertake criminal proceedings against any person before any court in respect of any offence alleged to have been committed. By Article 157(10) the Director does not require the consent of any person or authority for the commencement of criminal proceedings and, in the exercise of his powers, is not under the direction or control of any person or authority. The independence of that office is a cornerstone of the constitutional order, and a court will not lightly interpose itself between the Director and the discharge of his mandate, nor arrogate to itself the functions of the trial court or of an investigating agency. 28.That independence is not, however, unqualified. Article 157(11) commands that, in exercising his powers, the Director shall have regard to the public interest, the interests of the administration of justice and the need to prevent and avoid abuse of the legal process. The prevention of abuse of process is thus written into the very grant of the power. The High Court, for its part, is enjoined by Article 165(3)(d) and by its supervisory jurisdiction under Article 165(6) and (7), and is empowered under Articles 22 and 23, to ensure that the criminal process is not turned to improper ends. It follows that, while the discretion to charge belongs to the Director, the legality and the bona fides of its exercise remain amenable to the scrutiny of this court. 29.The jurisdiction to halt a prosecution is, nonetheless, to be exercised sparingly and with circumspection. This court does not sit to weigh the sufficiency of the prosecution’s evidence in advance of trial, nor to pronounce upon guilt or innocence; those are matters for the trial court, before which the petitioner remains at liberty to raise every defence open to him, including a submission of no case to answer. The court will intervene only where it is demonstrated that the prosecution is frivolous, vexatious, oppressive, actuated by bad faith or by an ulterior motive, or otherwise an abuse of the process of the court, or where, on the material relied upon, no offence is in truth disclosed. (ii) The distinction between a civil dispute and a criminal offence 30.Two established and complementary principles govern the second issue. The first, of long standing in this jurisdiction, is that the criminal process may not be pressed into service to advance, frustrate or settle a civil dispute, or as an instrument of debt collection. In Republic v Chief Magistrate’s Court at Mombasa Ex parte Ganijee & Another [2002] 2 KLR 703 the court expressed the principle thus:“It is not the purpose of a criminal investigation or a criminal charge or prosecution to help individuals in the advancement of frustrations of their civil cases. That is an abuse of the process of the court. No matter how serious the criminal charges may be, they should not be allowed to stand if their predominant purpose is to further some other ulterior purpose … When a prosecution is not impartial or when it is being used to further a civil case, the court must put a halt to the criminal process. No one is allowed to use the machinery of justice to cause injustice and no one is allowed to use criminal proceedings to interfere with a fair civil trial.” 31.The second, and countervailing, principle is that the existence of a contractual relationship between the parties does not of itself oust criminal liability, nor immunise a party from prosecution, where the same facts also disclose the ingredients of a criminal offence. Civil and criminal liability may co-exist, and the court will not stifle a legitimate prosecution merely because the transaction out of which it arises is commercial in character: See my decision in Alfred Lumiti Lusiba v Pethad Ranik Shantilal & 2 others [2016] KEHC 6978 (KLR), Republic v Commissioner of Police & Another Ex parte Michael Monari & Another [2012] eKLR and Commissioner of Police & the Director of Public Prosecutions v Kenya Commercial Bank Ltd & 4 Others [2013] eKLR. In Diamond Hasham Lalji & Another v Attorney General & 4 Others [2018] eKLR the Court of Appeal affirmed that a sound decision to prosecute rests upon two components which are that the available evidence is admissible and sufficient, and that the public interest requires a prosecution to be conducted. 32.These principles are reconciled by asking a single, decisive question: do the facts relied upon by the prosecution, taken at their highest, disclose the ingredients of the offence charged, or do they disclose no more than a civil dispute to which the label of crime has been affixed? If the former, the prosecution must be left to run its course before the trial court; if the latter, its continuation is an abuse that this court is obliged to arrest. (iii) The offence charged and its ingredients 33.The offence of obtaining by false pretences is created by section 313 of the Penal Code, which provides:“Any person who by any false pretence, and with intent to defraud, obtains from any other person anything capable of being stolen, or induces any other person to deliver to any person anything capable of being stolen, is guilty of a misdemeanour and is liable to imprisonment for three years.” 34.A “false pretence” is in turn defined by section 312 as:“Any representation, made by words, writing or conduct, of a matter of fact, either past or present, which representation is false in fact, and which the person making it knows to be false or does not believe to be true.” 35.The ingredients that the prosecution must establish are, accordingly: first, a representation of an existing or past fact; secondly, that the representation was false in fact and was known by its maker to be false, or was not believed by him to be true; thirdly, that the representation induced the complainant to part with something capable of being stolen; and fourthly, an intent to defraud. It is settled that the representation must relate to an existing or past fact. A promise as to future conduct, or the mere failure to perform a contractual undertaking, does not, ipso facto, amount to a false pretence within the meaning of the section. (iv) Application to the present case 36.I turn to apply these principles to the material before me, mindful that the question at this stage is not whether the petitioner is guilty; that is for the trial court, but whether the material assembled by the prosecution, taken at its highest, is capable of disclosing the ingredients of the offence, or whether it discloses no more than a civil dispute wearing the garb of the criminal law. 37.The petitioner’s case, taken alone, is not without force. If it be accepted that the salt was carried to Kampala, that the representation of a capacity to transport was thereby borne out, and that the Kshs 1,200,000/= was paid not by the complainant but by Modco General Contractors Limited, a stranger to the transaction, then the matter would reduce to a contest over the balance of the freight and the demurrage, a civil dispute, and the prosecution an abuse. On that view of the facts the petitioner’s complaint would be well founded. 38.The replying affidavit of the investigating officer, however, places each of those premises in genuine controversy, and it is that circumstance which is decisive. First, as to the source of the money: the payer of record is Said Annan, and whether he paid as a director of Modco General Contractors Limited and a stranger to the complainant (as the petitioner asserts), or as the son and agent of the 4th respondent (as the respondents depose), is a pure question of fact incapable of resolution upon the affidavits and annexures alone, the more so as the Business Registration Service record confirms Said Annan to be a director of Modco while leaving untouched the respondents’ assertion that he is also the complainant’s son. Secondly, and more fundamentally, as to the representation said to be false: the prosecution’s case, properly understood, is not that the petitioner failed to transport the salt, but that he obtained the entrusted sum by holding himself out as able and willing to procure and pay for the carriage, and then diverted the greater part of it, remitting, on the respondents’ account, only Kshs 240,100/= to the carriers, abandoning the consignment, and leaving the consignee to pay a second time. Whether those allegations are made out, and whether, if made out, they amount to a false representation of an existing fact accompanied by an intent to defraud, or merely to a contractual default dressed up as a crime, are questions that cannot be answered without evidence, tested by cross-examination, before the trial court. The petitioner’s arithmetical submission, that, at the rate the complainant himself speaks of, a balance on the freight remained due to him against the Kshs 1,200,000/= received, does not meet the case actually made against him, which is not that the freight was underpaid but that a sum entrusted for the carriage was obtained and then diverted; and the amount in fact passed down the chain is itself in contest, the petitioner asserting a payment of Kshs 600,000/= to Edken Ventures Limited where the investigating officer speaks of only Kshs 240,100/=. These, too, are matters for evidence, and not for summary resolution upon affidavits. 39.It follows that this is not a case in which the material relied upon by the prosecution negates, on its face, an essential ingredient of the offence. On the contrary, that material, taken at its highest, as at this stage it must be, is capable of supporting the charge. The matters upon which the petitioner relies (that the salt was delivered; that the payment came from Modco; that the outsourcing mirrored the complainant’s own manner of dealing; and that competing contractual demands abound) are not answers that entitle him to have the prosecution halted in limine; they are triable defences, to be advanced before the trial court, where they may found, among other things, a submission of no case to answer at the close of the prosecution’s evidence. To accede to them now would be to arrogate to this court the trial of the criminal cause and to deny the prosecution the opportunity, to which it is entitled, of having its evidence tested in the ordinary way. 40.The foreign authorities pressed by the petitioner do not carry him further. The principles distilled in Binod Kumar, themselves drawn from the categories laid down by the Supreme Court of India in State of Haryana V. Bhajan Lal (1992 Supp (1) Scc 335) and restated in Neeharika Infrastructure Private Limited v. State of Maharashtra and Others 2021 SCC OnLine SC. 315, are in harmony with the position already stated: that a prosecution may be arrested where the allegations, taken at their highest, disclose no offence, or where the process is shown to be mala fide or an instrument of vengeance, but that the power is to be exercised sparingly, and not so as to stifle a legitimate prosecution or to embark upon an assessment of the reliability of the evidence. Applied to this record, that test is not met, for the reasons already given. As for Indian Oil Corporation v NEPC India Ltd, the decision is, if anything, instructive against the petitioner in a material respect: while the Supreme Court there quashed the charges founded upon entrustment (theft, dishonest misappropriation and criminal breach of trust), holding that a hypothecation creates no entrustment, it declined to quash the charges of cheating and mischief, holding that the averments, taken at face value, disclosed those offences, and reaffirming that a commercial or contractual matrix neither ousts the criminal law nor immunises a party from a prosecution the evidence may sustain. The offence with which the petitioner is charged, that is, obtaining by false pretences under section 313 of the Penal Code, is the counterpart of cheating, and the same reasoning tells against quashing it at the threshold. The caution in G. Sagar Suri against clothing a matter “essentially of civil nature” in the garb of crime is well taken, but it presupposes that the civil character is plain; here, as I have shown, it is the very thing in dispute. 41.Nor is the petitioner assisted by his submission that the proper complainant is Edken Ventures Limited, and that the 4th respondent, not being the ultimate civil creditor, cannot competently complain. Obtaining by false pretences is an offence against the State, not a private wrong; a prosecution for it is undertaken in the public interest by the Director of Public Prosecutions in the exercise of the independent mandate conferred by Article 157(6) and (10), and does not depend upon the complainant being the person with the best civil claim. The office of a complainant is to lay information before the police; whether the 4th respondent is or is not the party ultimately entitled to sue in contract, and whether he did or did not misdescribe his interest in Modco General Contractors Limited, are matters that go to the weight of the evidence at trial, not to the competence of the prosecution. As the respondents rightly submitted, the decision to charge lay within the statutory province of the police and of the Director of Public Prosecutions, and nothing on this record displaces the presumption that it was regularly made. 42.Nor does Ganijee assist the petitioner on this record. That authority condemns the deployment of the criminal process where its predominant purpose is the advancement of a civil claim and its civil character is plain. Here the civil character is precisely what is in dispute. The allegation is not of a simple unpaid debt but of the obtaining of entrusted funds by a holding-out, and their diversion, the consignment being abandoned and the complainant left doubly out of pocket — a complexion that, if the evidence bears it out, is not merely contractual. The governing principle on such facts is that stated in the Michael Monari and in the Kenya Commercial Bank Ltd cases(supra): that civil and criminal liability may co-exist upon the same facts, and that the existence of a commercial matrix neither ousts the criminal law nor immunises a party from a prosecution that the evidence may sustain. The high threshold for the extraordinary step of halting a prosecution before trial is, on this material, not met. The alleged violations of rights, and the question of relief 43.It follows from the foregoing that the alleged violations of the petitioner’s fundamental rights are not established on the material before me. The prosecution not having been shown to be frivolous, vexatious or an abuse, there is no foundation for the complaint that it subjects the petitioner to psychological torture within Article 29(d), or that it denies him the equal protection of the law under Article 27, or that it trenches upon his right to the protection of the law. His remedy, if the charge is as insubstantial as he contends, lies in his acquittal before the trial court, not in the arrest of the trial by this court. 44.There is, moreover, an independent obstacle in the petitioner’s path. The reliefs he seeks are discretionary, and the constitutional jurisdiction invoked under Articles 22 and 23 is not to be exercised in aid of a party who does not himself submit to the process of the law. On the respondents’ unanswered deposition the petitioner, having taken the benefit of bail, absented himself from his trial, occasioned the issue of warrants of arrest against himself and his surety which remain in force, and filed this petition to forestall a hearing fixed to proceed in his absence. A litigant who thus evades the very proceedings he asks this court to halt does not come to equity with clean hands, and on that ground also the court would, in the exercise of its discretion, decline the reliefs sought. 45.The impugned prosecution not having been shown to be an abuse of process or a violation of the petitioner’s rights, the prayers for damages and for interest, which are consequential upon a finding of violation, do not arise. 46.For the reasons I have given, the petition dated 22nd August 2024 is not made out. I make the following orders:(a)The petition is dismissed.(b)For the avoidance of doubt, nothing in this judgment shall be taken as an expression of any opinion upon the guilt or innocence of the petitioner. The Chief Magistrate’s Court at Mombasa is at liberty to hear and determine Mombasa Criminal Case No. E1252 of 2023 according to law, and the petitioner remains at liberty to raise before that court every defence open to him, including a submission of no case to answer.(c)I make no order as to costs. SIGNED DATED AND PUBLISHED ON 7 AUGUST 2026NGAAH JAIRUSJUDGE