https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11730

Lenana Innovative Solutions Limited v Director of Criminal Investigations & 6 others (Miscellaneous Application E019 of 2026) [2026] KEHC 11730 (KLR) (Crim) (18 May 2026) (Ruling) Neutral citation: [2026] KEHC 11730 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Law Courts) Criminal Miscellaneous Application E019 of 2026 AM Muteti, J May 18, 2026 Between Lenana Innovative Solutions Limited- Applicant and The Director of Criminal Investigations 1st Respondent The Director of Public Prosecution 2nd Respondent Wlb Asset Ii Pte D. Ltd 3rd Respondent Wlb Asset Vi Pte. Ltd 4th Respondent The Chief Magistrate Court Milimani Law Courts Criminal Division- 5th Respondent Ecobank Bank of Kenya Ltd 6th Respondent Safaricom Plc 7th Respondent Ruling Introduction 1.This Ruling is in respect of a Notice of Motion expressed to be brought under Article 165 (6) & (7) of the Constitution and section 362 of the Criminal Procedure Code and all the other enabling provisions of the law. 2.The applicant moved this court for orders that: -a).This matter be certified urgent and that the same be heard ex-parte in the first instance. (spent)b).Pending the hearing and determination of the application inter partes there be a stay of the proceedings and execution of the orders of the Chief Magistrates Court Milimani issued on 29th January 2026 in Miscellaneous Criminal Application No E403 of 2026 save that funds domiciled in the bank accounts held by the 6th Respondent the below listed accounts be preserved in the meantime:i).Lenana Innovative Solutions Limited Account No 6580014351 domiciled at Ecobank Kenyaii).Lenana Innovative Solutions Limited Account No 6580017054 domiciled at Ecobank Kenyaiii).Lenana Innovative Solutions Limited Account No 6580014708 domiciled at Ecobank Kenya.c).The Honourable Court be pleased to call and examine the record in The Magistrates Court at Milimani Miscellaneous Criminal Application No E403 of 2026 purposes of satisfying itself of the correctness, legality or propriety of the orders issued on 29th January 2026 and the entire proceedings thereto.d).The Honourable Court be pleased to review/vary and or set aside the orders of the Chief Magistrate Court at Milimani issued on 29th January 2026 in Miscellaneous Criminal Application No E403 of 2026.e).An order of permanent injunction do issue restraining the Respondents whether by themselves, their agents or any other person acting on their behalf from investigating the Applicant herein, its Directors, its bank accounts held with the 5th Respondent herein, or records held by the 7th Respondent herein or any other accounts or records premised on the complaint letter dated 15th December 2025 by the 3rd and 4th Respondents herein.f).The Honourable court be pleased to issue an order of anonymization when the matter is reported at the Kenya Law Reportsg).The costs of this application be borne by the Respondents. 3.In support of the application the applicant raised the following grounds;-i).The Applicant and the 3rd and 4th Respondents entered into lending agreements secured by 2 promissory notes dated 21st December 2022 and 4th January 2024.ii).Within the pendency of the performance of the agreements, the Applicant became aware that the 3rd and 4th Respondents were not registered as either foreign company, local company nor did they have licensing from the Central Bank of Kenya or have Kenya Revenue Authority Personal Identification Numbers (PIN) to allow them to lend in Kenya ostensibly operating illegally in Kenya.iii).Noting the illegality, the Applicant filed Constitutional Petition number E078 of 2025 at the High Court of Kenya at Nairobi and obtained conservatory orders staying the performance of the contracts pending the hearing and determination of the Petition.iv).The 3rd and 4th Respondents thereafter attempted to discharge the court orders vide their application dated 15th April 2025 seeking to have the matter referred to Singapore for Arbitration which application was dismissed vide a ruling dated 14th August 2025.v).Being dissatisfied by the ruling the 3rd and 4th Respondent filed an appeal at the Court of Appeal vide Civil Application no E645 of 2025 which is due for hearing on 16th February 2025 interim orders ex-parte having been declined.vi).Noting that they had failed in their quests, the 3rd and 4th Respondents filed a complaint with the 1st Respondent herein regarding the same contracts subject to questioning on legality precipitating the 1st and 2nd Respondents to file Misc Application E403 of 2026 at the 5th Respondent herein.vii).The 5th Respondent issued ex-parte orders on 29th January 2026 amongst other things preserving the funds in the accounts of the Applicant and granting the Respondents unlimited access to the accounts and transactions of the Applicant herein vide Miscellaneous Criminal Application No E403 of 2026.viii).The said orders were issued ultra vires as they are issued by a subordinate court whilst the same substratum subject of the application is within the jurisdiction of the superior court and the court of appeal.ix)The Application and the complaint are equally untenable in law as they are made by an entity that has no legal capacity to do so.x).The orders issued are further in violation of the Applicant's constitutional and administrative rights as the Applicant was not issued with any notice to produce the documents and refused to do so nor have the Respondents demonstrated why it was imperative for the orders to issue.xi).The application is further procedurally and legally untenable as the Investigating officer prima facie indicates in his affidavit that the matter at issue is civil in nature relating to a lender and borrower relationship devoid of any criminal elements.xii).The Application is further an abuse of the court process as the Respondents are now using the courts as a tool to coerce the Applicant into withdrawing the Constitutional Petition filed against the 3rd and 4th Respondents which the court has prima facie found merit in.xiii).The orders of the lower court and indeed the commencement of the criminal process has been done irrationally and unlawfully by the 1st to 5th Respondents to the detriment of the Applicant herein.xiv).The impugned decision herein was further arrived at in a manner that was procedurally unfair as the Respondents did not avail to the applicant an opportunity to volunteer the information required or to address the court on the subsistence of stay orders in the High Court despite the respondents being aware of the same.xv).It was therefore necessary to stay all the proceedings in the lower courts save to preserve the funds in the bank accounts pending the hearing and determination of the application inter partes.xvi).lt was further necessary for this Honourable court to call upon into the record the proceedings before the Chief Magistrates Court at Milimani, Miscellaneous Criminal Application No E403 of 2026 to examine the correctness and to issue such other directives as appropriate.xvii).That it is further necessary for this Honourable Court to substantively discharge the orders of the Chief Magistrate court at Milimani vide Miscellaneous Criminal Application No E403 of 2026xviii).It is imperative for this Honourable court to issue injunctive orders against the Respondents herein barring them from abusing the criminal justice system and accordingly undertaking investigations or charging the Applicant herein or its directors on the premises of the complaint filed with the 1st Respondent by the 3rd and 4th Respondents on 15th December 2025.xix).It is in the interest of justice that the orders sought be granted.xx).The Respondents shall suffer no prejudice if the orders sought are granted. 4.The applicant further supported the application through the affidavit of one Joseph Kuria, a Director of the Applicant company. 5.The deponent attached the company resolution allowing him to depone to the affidavit thus establishing his locus in supporting the application. 6.The deponent deponed that on 29th January 2026, the 5th Respondent issued ex parte orders in Miscellaneous Criminal Application No. E403 of 2026, preserving the Applicant’s bank accounts and granting the Respondents unrestricted access to the Applicant’s accounts and transactions 7.The said orders arose from an application dated 29th January 2026 by the 1st and 2nd Respondents, supported by the affidavit of Chief Inspector Johnson Kioli. 8.The Deponent averred that the application was premised on a complaint allegedly lodged by the 3rd and 4th Respondents through Anjarwalla & Khanna Advocates on 15th December 2025, though the complaint letter was not annexed to the application. 9.The deponent asserted that the impugned orders are ultra vires, having been issued by a subordinate court despite the substratum of the dispute being actively before superior courts. Further, the application is said to be legally untenable, having been initiated by entities lacking legal capacity. 10.According to the deponent the orders complained of violate the Applicant’s constitutional and administrative rights, as no prior notice was issued requiring production of documents, nor was any refusal demonstrated. 11.Additionally, the investigating officer’s affidavit indicates that the dispute is fundamentally civil in nature, arising from a lender–borrower relationship devoid of criminal elements. 12.The Deponent further averred that the proceedings constitute an abuse of court process, intended to coerce the Applicant into withdrawing a pending Constitutional Petition against the 3rd and 4th Respondents, which has already been found prima facie meritorious. 13.By way of background, the Deponent states that the Applicant and the 3rd and 4th Respondents entered into lending agreements secured by two promissory notes dated 21st December 2022 and 4th January 2024, with the Respondents as lenders and the Applicant as borrower. 14.According to the applicant the Respondents, as lenders operating in Kenya, were under statutory obligations to comply with Kenyan law, including registration under the Companies Act, obtaining tax registration under the Tax Procedures Act, and securing licensing or exemption from the Central Bank of Kenya under the Banking Act and the Central Bank of Kenya Act. 15.The Applicant maintained that it performed its obligations until November 2024, when it sought restructuring of the loan. Subsequently, the Applicant instructed its advocates to conduct due diligence, which revealed that the 3rd and 4th Respondents were neither registered in Kenya nor licensed by the Central Bank of Kenya to provide credit facilities. 16.Following those findings, the Applicant filed Nairobi High Court Constitutional Petition No. E078 of 2025, seeking, inter alia: Declarations that Section 6(4) of the Movable Property Securities Act is unconstitutional; Declarations that the Respondents lack legal capacity to contract, register securities, and offer financial services in Kenya without compliance with statutory requirements; Nullification of the promissory notes, contracts, and securities; Cancellation of charges registered under the Movable Property Security Rights Act; and Costs and interests. 17.The Deponent states that the issues identified in the petition raise substantial public law questions regarding the legality of the transaction. 18.The Applicant filed an interlocutory application dated 19th February 2025, upon which the High Court issued conservatory orders suspending performance of the contractual obligations. 19.The 3rd and 4th Respondents subsequently applied on 15th April 2025 to set aside the orders and refer the matter to arbitration in Singapore; however, this application was dismissed on 14th August 2025. 20.Following the dismissal, the Respondents filed Civil Application No. E645 of 2025 and Civil Appeal No. E945 of 2025 before the Court of Appeal. Interim ex parte relief was declined, and the application was scheduled for hearing on 16th February 2026. 21.The Deponent asserts that the Respondents were fully aware of the ongoing proceedings in the High Court and Court of Appeal, and that any complaint lodged with the 1st Respondent without disclosure of these proceedings amounts to material non-disclosure and an attempt to circumvent superior court processes. 22.It is further contended that the institution of Miscellaneous Criminal Application No. E403 of 2026 was undertaken without disclosure of material facts; or was deliberately filed to mislead the subordinate court, rendering the resultant orders unlawful and liable to be quashed. 23.The Deponent reiterates that the subordinate court lacked jurisdiction, given that the substantive issues are already before superior courts, including the Constitutional Court. 24.The applicant avers that the Respondents’ actions are irrational, unlawful, and calculated to frustrate the Applicant, and amount to misuse of investigative and prosecutorial powers to exert pressure on the Applicant. 25.The Deponent contends that allowing the impugned proceedings to subsist alongside orders of the High Court and Court of Appeal undermines the constitutional hierarchy of courts and the administration of justice. 26.Accordingly, the Deponent urges the Court to:i).Stay all proceedings in Miscellaneous Criminal Application No. E403 of 2026;ii).Quash the orders issued on 29th January 2026; andiii).Grant orders of prohibition as sought in the substantive application. 27.The deponent asserted that the application has been brought without delay, and that granting the orders sought is in the interest of justice. Applicant’s Case 28.The Applicant herein filed the present application seeking, among other reliefs, stay of proceedings and execution of the orders issued by the Chief Magistrate’s Court at Milimani on 29th January 2026 in Miscellaneous Criminal Application No. E403 of 2026, review and setting aside of the said orders, permanent injunctive orders restraining the Respondents from investigating the Applicant, its directors, bank accounts and related records on the basis of the complaint dated 15th December 2025, as well as orders for anonymization and costs. 29.The Applicant, however, expressed willingness for preservation of funds held in the specified Ecobank accounts pending determination of the application. 30.The genesis of the present application lies in proceedings initiated by the 1st and 2nd Respondents before the Chief Magistrate’s Court at Milimani through Miscellaneous Criminal Application No. E403 of 2026, where they obtained freezing orders and search warrants against the Applicant’s bank accounts. 31.The said application was premised on allegations that the Applicant was involved in possession of proceeds of crime and money laundering. 32.The complaint giving rise to those investigations was lodged by the 3rd and 4th Respondents, who alleged that they had advanced to the Applicant an aggregate sum of USD 17 Million for purposes of extending credit to women and small-scale farmers in Kenya. 33.The Applicant contended that the dispute between the parties is purely civil and commercial in nature, arising from lending agreements embodied in two promissory notes and accompanying documentary securities. 34.It is the Applicant’s position that it performed its obligations under the said agreements until conservatory orders were issued by the High Court in Constitutional Petition No. E078 of 2025 on 19th February 2025, thereby halting further performance. 35.The Applicant submitted that the 3rd and 4th Respondents were improperly using the criminal justice system as an avenue for debt collection and are attempting to circumvent the conservatory orders issued in Constitutional Petition No. E078 of 2025. 36.In response to allegations raised in the replying affidavits by the Investigating Officer and Mr. Alexander Craybill, the Applicant maintained that the affidavit sworn by Mr. Craybill is improperly deposed on behalf of IIX rather than the 3rd and 4th Respondents and should therefore be struck out. 37.The Applicant further reiterated that the search warrants and freezing orders were obtained through material non-disclosure, particularly through failure to disclose the existence of the Constitutional Court orders and the contractual documents governing the parties’ relationship, matters which could have materially influenced the lower court’s decision. Through the further affidavit of Joseph Kuria dated 26th February 2026, the Applicant has also rebutted allegations regarding its operational status by providing evidence of its current office location and evidence demonstrating continued commercial engagement between the parties, including repayment of interest, restructuring requests, and responses to breach notices. 38.The Applicant identified the following issues for determination by this Honourable Court:i).whether there was a justifiable complaint to warrant commencement of investigations;ii).whether the warrants were procedurally issued and, if not, whether they should be quashed; andiii).whether the impending investigations and criminal process should be stopped and prohibited. 39.On the first issue, the Applicant acknowledged the constitutional mandate of the 1st and 2nd Respondents to investigate complaints and prosecute offences where appropriate. However, it submits that such authority can only be triggered where a complaint is justifiable and lodged in good faith. 40.The Applicant argued that the complaint lodged by the 3rd and 4th Respondents failed to meet the threshold of probable cause, having been made with material non-disclosures and in bad faith. 41.In particular, the Applicant submitted that the complainants failed to disclose that the Applicant had serviced the loan facilities for approximately two years, that prior breach notices had been issued and later waived after being found erroneous, and that the 3rd and 4th Respondents had undertaken due diligence on the Applicant before advancing the loan facilities. 42.These omissions, the Applicant submitted, demonstrate an improper attempt to invoke the process of the criminal justice system. 43.On the second issue concerning the warrants, the Applicant submitted that the warrants issued by the lower court on 29th January 2026 were improperly obtained, fatally defective, and liable to be quashed. 44.It was contended that the affidavit sworn in support of the application by Chief Inspector Johnson Kioli contained manifestly false depositions, particularly allegations that the Applicant had failed to honour the repayment agreement and had denied the complainants access to financial records. 45.The Applicant maintained that it made payments as and when due until conservatory orders were issued in Constitutional Petition No. E078 of 2025 and that the 3rd and 4th Respondents had full access to the Applicant’s financial information, as evidenced by the breach notices they had issued based on cost-to-income ratio assessments. 46.The Applicant further argued that the 1st Respondent conducted no meaningful investigations before seeking the warrants and merely acted on the complaint without independently verifying the allegations. 47.Further, the applicant submitted that the Respondents failed to first seek the required information directly from the Applicant through less restrictive means, contrary to the guarantees of fair administrative action under Article 47 of the Constitution and the Fair Administrative Action Act. 48.The applicant cited several authorities in support of the application to wit;-i).Director of Public Prosecutions vs Tom Ojienda t/a Prof Tom Ojienda Associates Advocates & 3 Others (2019) eKLR.ii).Minister for Safety and Security v Van Der Merwe and Others (CCT90/10) (2011) ZACC 19; 2011 (5) SA 61 (CC); 2011(9) BCLR 961 (CC); 2011 (2) SACR 301 (CC) (7 June 2011).iii).Vitu Limited vs. The Chief Magistrate Nairobi & 2 Others, Misc. Criminal Application No.475 of 2004, where the Court held as follows:“A police officer is not legally empowered to apply for or to obtain a warrant to investigate a person’s bank account just because he imagines that that person may commit or has committed an offence. There must be substantial facts and circumstances already available to the officer to enable him to create or to have a reasonable suspicion in mind that, the account holder has committed an offence…there must have been a complaint and investigations.”iv).Emmanuel Suipanu Siyanga v Republic Criminal Appeal 124 of 2009 (2013) eKLR, where the Court held as follows:“………….and it follows that the factual basis which would make any suspicion which is actually formed a reasonable one must also exist at the material time: a suspicion cannot be held to be reasonable if it is founded on non-existent facts. This would be a subjective opinion and must be based on grounds actually existing at the time of its formation. If there are not grounds which then made the suspicion reasonable, it was not a reasonable suspicion. Whether grounds actually existed at the time is to be tested objectively….”v).In Manfred Walter Schmitt & Another v Republic & Another (2013) eKLR, where the Court held as follows:“25.The issue then for consideration is whether there were reasonable grounds for suspicion that the applicants had committed any offense to warrant the issuing of orders to investigate the applicants’ accounts…” 49.The Applicant submitted that no evidence was placed before the Magistrate sufficient to justify issuance of the warrants and freezing orders. 50.It is further emphasized that all Respondents were aware of the conservatory orders issued in Constitutional Petition No. E078 of 2025 and failed to disclose the same to the Magistrate’s Court. 51.The Applicant also contended that the warrants violated the procedural guidelines issued by this Honourable Court in Hassan Mohammed v EACC & Another 2019, as well as the principles set out by the Court of Appeal in Samuel Watatua & another v Republic, in that the warrants were issued for ninety days instead of fourteen days, lacked a return date, and were never served upon the Applicant or the affected persons. 52.On the final issue, the Applicant submitted that while this Court ordinarily exercises restraint in interfering with the mandates of constitutional bodies, it retains jurisdiction to prevent abuse of the criminal justice system. The applicant relied on Kuria & 3 Others VS Attorney General (2002) 2 KLR 69 where it was held:“The Court has power and indeed the duty to prohibit the continuation of the criminal prosecution if extraneous matters divorces from the goals of justice guide their initiation.” 53.The applicant further cited the case of Republic vs Chief Magistrate’s Court at Mombasa Ex Parte Ganijee & Another (2002) 2 KLR it was held that: “It is not the purpose of criminal investigation or criminal charge or prosecution to help individuals in the advancement of frustration of their civil cases. That is an abuse of the process of the court…” 54.The Applicant submitted that the criminal proceedings arise directly from the same commercial transaction which forms the subject of Constitutional Petition No. E078 of 2025 and related proceedings before the Court of Appeal. It was therefore argued that, having failed to obtain favourable relief in those fora, the 3rd and 4th Respondents have resorted to criminal proceedings as a means of debt recovery and to avoid determination of significant constitutional questions concerning their own regulatory compliance in Kenya. 55.The Applicant further submitted that the matters raised in the intended criminal investigations can be conclusively determined within the existing civil and constitutional proceedings. 56.The applicant cited the case of Haria & 3 Others vs Director, Directorate of Criminal Investigations & 3 Others (Petition E049 of 2021) KEHC 2549 (KLR), where the court stated:-“Although section 193A of the Criminal Procedure Code allows concurrent civil and criminal proceedings, criminal proceedings should not be undertaken where the issue in controversy can be properly and effectively determined through civil proceedings.” 57.In conclusion, the Applicant submitted that the complaint lodged against it lacked probable cause, that the warrants and freezing orders were irregularly and unlawfully obtained, and that the criminal proceedings constitute an abuse of the court process and are intended to advance debt collection objectives. 58.Accordingly, the Applicant urged this Honourable Court to allow the application with costs to be borne by the 3rd and 4th Respondents. 1st and 2nd Respondents Case 59.The 1st and 2nd respondents filed an affidavit sworn on 10th February 2026 and submissions dated 9th April 2026. The two respondents placed reliance on the provisions of Section 180 of the Evidence Act as their source of authority to investigate bank records and documents. 60.Mr Mogere counsel for the 1st and 2nd respondents submitted that the warrants issued to the 1st respondents were issued within the law and for the applicant to succeed in this application he must demonstrate illegality or want of jurisdiction on the part of the magistrate in granting the impugned order. Counsel cited the case of Kinoti $ 7 Others vs Chief Magistrates Court Milimani (2022) eKLR. 61.The 1st and 2nd respondents further relied on the provisions of Section 193A of the Criminal Procedure Code which permits concurrent civil and criminal proceedings. 62.The existence of the Constitutional Petition counsel argued does not oust the jurisdiction of the Criminal Court. 63.The 1st and 2nd respondents further argued that material non- disclosure does not arise since according to them, all that is required for the investigations to commence is reasonable suspicion. The respondents cited Sections 4 and 16 of the Proceeds of Crime and Anti-Money Laundering Act as a basis for the investigations. 64.The 1st and 2nd respondents therefore argued that the court should not interfere with the decision of the court that granted the warrants to search the bank records of the applicants and obtain other records relating to the operations of the applicant. 65.The 1st and 2nd respondents therefore urged the court to dismiss the application in its entirety. 3rd and 4th Respondents’ Case 66.The 3rd and 4th Respondents opposed the Applicant’s Notice of Motion Application dated 3rd February 2026 and submitted that the Application is not a genuine constitutional challenge to unlawful state action but rather a calculated attempt by the Applicant to evade lawful scrutiny and interfere with the statutory mandate of the 1st Respondent under Section 35 (b) of the National Police Service Act. 67.The Respondents contended that the Applicant seeks to improperly invite this Honourable Court to interfere with ongoing investigations at their inception before any prosecutorial decision has been made. 68.The Respondents submitted that the Applicant admittedly received approximately USD 17,000,000 from the 3rd and 4th Respondents pursuant to promissory notes dated 21st December 2022 and 4th January 2024 for the specific purpose of lending to smallholder female farmers in Kenya. 69.The funds were advanced subject to clear accountability and reporting obligations. However, despite repeated requests, the Applicant allegedly failed to provide credible evidence of on-lending or proper utilization of the funds in accordance with the agreed purpose. The Applicant further failed to meet obligations under the Promissory Notes and instead instituted litigation challenging the very instruments under which it had received the funds. 70.The 3rd and 4th Respondents stated that these circumstances reasonably raised apprehension that the funds may have been obtained by false pretences, that their true application had been concealed, and that the Applicant’s conduct exhibited a pattern consistent with money laundering. Consequently, through their advocates, the 3rd and 4th Respondents lodged a complaint dated 15th December 2025 with the 1st Respondent. 71.The respondents submitted that all material facts were disclosed in the complaint, including the existence of ongoing civil proceedings relating to the same subject matter, and copies of the pleadings in the civil suit were attached. 72.According to the Respondents, whereas the civil proceedings concern the legality of the transaction documents, the criminal complaint invited investigations into the actual use of the funds, receipt of which is not disputed. 73.The Respondents identified two issues for determination, namely whether there exists any lawful basis for this Honourable Court to interfere with ongoing criminal investigations, and whether the existence of civil proceedings bars the institution or continuation of criminal investigations. 74.On the first issue, the Respondents submitted that the threshold for judicial interference with investigations is exceptionally high and only arises where investigations are unlawful, undertaken in bad faith, or constitute an abuse of process. The respondents argued that the Applicant had failed to satisfy the threshold. 75.The Respondents relied on Article 157 of the Constitution of Kenya, 2010, which vests the 2nd Respondent with independent constitutional authority to institute and undertake criminal prosecutions, as well as Section 35 of the National Police Service Act, which mandates the 1st Respondent to collect criminal intelligence and investigate serious offences, including economic crimes and money laundering. 76.It was submitted that these constitutional and statutory mandates are activated upon receipt of information disclosing potential criminal conduct and do not require prior judicial authorization or assessment at inception. 77.The respondents cited Saisi & 7 others v Director of Public Prosecutions & 2 others [2023] KESC 6 (KLR), where the Supreme Court emphasised that questions relating to sufficiency of evidence, elements of an offence, and interpretation of statutory provisions are matters for determination at trial and that attempts to forestall investigations on constitutional grounds are generally premature. 78.The respondents further cited the case of Director of Public Prosecutions v Martin Maina & 4 Others [2017] KECA 93 (KLR), the Court of Appeal held that the sufficiency or accuracy of evidence can only be assessed by the trial court and reaffirmed the independence of the prosecutorial function under Article 157(10) of the Constitution. 79.In Meixner & another v Attorney General [2005] KECA 292 (KLR), the Court of Appeal upheld the position that challenges to the sufficiency or credibility of evidence do not constitute grounds for halting investigations as such matters are reserved for trial. The Respondents also rely on Cospin SRL Limited v County DCI Headquarters Nairobi. 80.In Monari & another v Commissioner of Police & another; Abubakar & another (Interested Parties) [2012] KEHC 4595 (KLR), the High Court emphasised that once a complaint is made, the police are under a duty to investigate and courts should be slow to interfere absent evidence of malice, bad faith, or abuse of power. The Court further observed that:“It is the function of the court before which the charge shall be placed and which shall conduct the intended trial to determine the veracity and the merit of any evidence to be tendered against an accused person. It would be improper for this court to try and/or attempt to determine the intended criminal case which is not before it.” 81.The Respondents further relied on Cospin SRL Limited v County DCI Headquarters Nairobi, where the Court declined to halt investigations into alleged economic crimes notwithstanding the contractual relationship between the parties and recognised that investigative agencies are entitled to access financial records through lawful procedures. 82.The Respondents also invoked the doctrine of separation of powers as articulated by the Supreme Court in Langat v Kericho County Assembly Committee on Appointments & 2 others [2020] KESC 34 (KLR), wherein the Court observed:“Separation of powers was an integral principle in the Constitution…” 83.The Respondents submitted that the investigations herein arise from a formal complaint regarding the use of USD 17,000,000 advanced to the Applicant. The Applicant admits receipt of the funds and the existence of the underlying transaction. The investigations seek to establish whether the funds were utilized for their intended purpose or diverted elsewhere. To facilitate those investigations, the 1st Respondent required access to records held by the 6th and 7th Respondents, necessitating judicial warrants for inspection of accounts. The Respondents submit that the obtaining of judicially supervised warrants demonstrates procedural propriety rather than bad faith or harassment. 84.The Respondents argued that the Applicant has failed to demonstrate that the investigations are unlawful, malicious, or actuated by ulterior motive. Instead, the Applicant improperly seeks to challenge the substance and justification of the complaint at a preliminary stage contrary to settled law. 85.It was submitted that whether the evidence discloses an offence is a matter first for the 1st Respondent and thereafter for the 2nd Respondent under Article 157 (6) (a) of the Constitution, and ultimately for the trial court should prosecution ensue. 86.The Respondents further opposed the Applicant’s contention that investigations require a “justifiable complaint” based on the Fourth Amendment to the United States Constitution. They submit that such reliance is misplaced because Kenyan law and the Constitution govern the present proceedings. Reliance is placed on Article 2 of the Constitution, which affirms constitutional supremacy, and Article 24 of the Constitution, which permits limitation of rights such as privacy where justified in the context of lawful investigations. 87.The Respondents maintained that, even assuming the Applicant’s proposed test was applicable, there nonetheless existed a thoroughly justified basis for investigation arising from the Applicant’s admitted receipt of the funds and its failure to account for their use. The Respondents detail repeated requests made between December 2024 and February 2025 for impact reports and evidence of on-lending, all of which allegedly went unanswered. 88.Regarding the warrants, the Respondents submitted that the Applicant had failed to demonstrate any illegality or procedural impropriety in their issuance. Reliance was placed on Section 118 of the Criminal Procedure Code, which empowers courts to issue search warrants where there exists reasonable suspicion that evidence necessary for investigations is located in a specified place. 89.The Respondents also relied on Section 118A of the Criminal Procedure Code, which permits such applications to be made ex parte, and Section 180(1) of the Evidence Act, which authorises courts to permit inspection of bankers’ books where necessary for investigation into commission of an offence. 90.The Respondents contended that the Applicant’s complaint regarding lack of notice was legally untenable because the law expressly contemplates ex parte applications for warrants, particularly in matters involving financial records and electronic evidence. 91.In Okiya Omtatah & 2 Others v Attorney General & 4 Others (2018) eKLR, the High Court observed that prior notice to a person under investigation may jeopardise evidence through concealment or destruction. The Court of Appeal affirmed that decision. 92.The Respondents further argued that the Applicant improperly relied on foreign authorities such as R v Genest rather than the applicable Kenyan statutory framework under Section 118 of the Criminal Procedure Code. 93.The respondents submitted that the threshold for issuance of warrants was met, given the complaint concerning the use of substantial funds advanced to the Applicant and the absence of proper accounting for those funds. 94.The Respondents maintained that even if any defect existed in the warrants, which is denied, such defect would not justify halting investigations altogether because the investigative mandate remains distinct from the warrants themselves and any procedural defect could be cured through issuance of fresh warrants. 95.The respondents also denied any allegations of material non-disclosure and submitted that omission to specifically place the conservatory orders in Petition E078 of 2025 before the magistrate did not invalidate the warrants so long as reasonable grounds existed to justify investigations. 96.On the second issue, the Respondents submitted that the existence of parallel civil proceedings does not bar criminal investigations. Reliance was placed on Section 193A of the Criminal Procedure Code, which provides:“Notwithstanding the provisions of any other written law, the fact that any matter in issue in any criminal proceedings is also directly or substantially in issue in any pending civil proceedings shall not be a ground for any stay, prohibition or delay of the criminal proceedings.” 97.The respondents relied on Ireri Ndwiga v Bedan Ireri M’miti [2017] KEELC 633 (KLR), the Court recognised that criminal and civil proceedings serve distinct purposes and may properly proceed concurrently. 98.The Respondents also relied on Dande & 3 Others v Inspector General, National Police Service & 5 Others [2023] KESC 40 (KLR), where the Supreme Court stated:“The conclusion we draw from the above provision is that both civil and criminal jurisdictions can run parallel to each other and that neither can stand in the way of the other unless either of them is being employed to perpetuate ulterior motives or generally to abuse the process of the court in whatever manner.” 99.The Respondents submitted that the present matter is not an ordinary commercial dispute because the funds were advanced for a defined social purpose and the Applicant has allegedly failed to account for their utilization, thereby raising possible issues of fraud or obtaining by false pretences. 100.They argued that the conservatory orders issued in Constitutional Petition No. E078 of 2025 concern only the civil proceedings and cannot restrain criminal investigations or prevent issuance of investigative warrants under the Criminal Procedure Code. 101.The Respondents further sought to distinguish the authorities relied upon by the Applicant. They submitted that Haria & 3 Others v Director, Directorate of Criminal Investigations & 3 Others involved circumstances where investigations had already concluded and the DCI had declined prosecution before attempts were made to reopen the matter in bad faith. Similarly, Republic v Chief Magistrate’s Court at Mombasa Ex Parte Ganijee & another concerned a private prosecution commenced after investigations had concluded and the Attorney General had advised against prosecution. The Respondents submitted that, unlike those cases, investigations herein remain ongoing and no prosecutorial decision has been made. 102.The Respondents therefore submitted that the present matter gives rise to both civil and criminal consequences capable of proceeding concurrently under Section 193A of the Criminal Procedure Code and that it would be premature and contrary to law to halt investigations at this stage. 103.In conclusion, the 3rd and 4th Respondents submitted that the Application is devoid of merit, that investigations were lawfully commenced, the warrants were properly issued, and no basis had been established to warrant intervention by this Honourable Court. Accordingly, they urged the Court to dismiss the Application with costs to the 3rd and 4th Respondents. Issues For Determination 104.The following issues arise foe determination from the submissions of the parties;i).whether there was a probable cause on the part of the 1st and 2nd respondents to initiate criminal investigationsii).whether the police in moving to investigate the matter were acting intra viresiii).whether given the totality of the circumstances an order for prohibition should issue Analysis And Determination 105.The parties in this matter canvassed the application by way of written submissions and made oral highlights before this court on 15th April 2026. This court has fully considered the submissions as well as the evidence of the Investigating officer through his sworn affidavit and during cross-examination. 106.The crux of the applicant’s application is that the 3rd and 4th respondents initiated the criminal complaint against them solely to advance what is essentially a civil claim and that in doing so they failed to disclose to the 1st and 2nd respondents that there was a matter in the High Court as well as the Court of Appeal relating to the same issues. 107.The essence of the applicant’s application is that if this court allows the 1st and 2nd respondents to continue with the investigations and eventually charge the applicant, the could would be sanctioning a prosecution whose predominant purpose is to assist a party achieve that which he has failed to achieve through a civil process. 108.The applicant has made it clear throughout their submissions written and oral that the issue between them and the 3rd and 4th Respondent is a lender borrower dispute which should not be criminalized. 109.This court allowed all the parties to cross examine the investigating officer who was summoned at the instance of the applicants. 110.The court heard the CI Kioli of DCI and according to him when the complaint was lodged with them, the 3rd and 4th Respondent did not disclose that there was a High Court order issued in proceedings touching on the dispute. 111.The officer was emphatic that the 3rd and 4th respondents at the time of making the complaint to him they did not issue him with a copy of the conservatory order freezing transactions between them and the applicant. 112.The investigator went on to state that he learnt of the order by the High Court from applicant’s counsel and so was the position with respect to the breach notices and the responses thereto. 113.The investigator went on to inform the court that had the conservatory order been served on him he would have considered it at the time of filing the application in the lower court and that the order would have formed part of the investigations. 114.The investigator thus admitted that the existence of the court order was a matter that should have been brought to his attention and by implication would have helped him determine whether there was a probable cause to launch investigations or help him determine whether there was reasonable suspicion of the commission of a crime to warrant commencement of investigations. 115.The complainants in this this court’s view should have made full disclosure of the nature of dispute because that would have been considered wholly by the investigator before initiating investigations for it can never be the lawful business of the police to assist parties to advance their civil claims. The function of the police is to detect and prevent crime. The investigator must therefore engage in an investigation to uncover crime and not to assist a party to enforce their contractual arrangements. 116.In Republic vs. Chief Magistrate’s Court at Mombasa Ex Parte Ganijee & Another [2002] 2 KLR 703, it was held:“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. The sole purpose of criminal proceedings is not for the advancement and championing of a civil cause of one or both parties in a civil dispute, but it is to be impartially exercised in the interest of the general public interest. 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.If a criminal prosecution is an abuse of the process of the court, oppressive or vexatious, prohibition and/or certiorari will issue and go forth.....When a remedy is elsewhere provided and available to person to enforce an order of a civil court in his favour, there is no valid reason why he should be permitted to invoke the assistance of the criminal law for the purpose of enforcement.For in a criminal case a person is put in jeopardy and his personal liberty is involved. If the object of the appellant is to over-awe the respondent by brandishing at him the sword of punishment thereunder, such an object is unworthy to say the least and cannot be countenanced by the court... In this matter the interested party is more actuated by a desire to punish the applicant or to oppress him into acceding to his demands by brandishing the sword of punishment under the criminal law, than in any genuine desire to punish on behalf of the public a crime committed. The predominant purpose is to further that ulterior motive and that is when the High Court steps in...”. 117.The Applicant in this matter has complained to this court that the investigations initiated at the instance of the 3rd and 4th Respondents are calculated to advance the 3rd and 4th respondents cause in their civil dispute. The objective of the 3rd and 4th respondent is said to be to coerce the applicant to service the credit facility advanced to them by the 3rd and 4th respondent. 118.The 1st and 2nd respondents argued that section 180 of the Evidence Act permits the investigation of Bank records. The two respondents with respect missed the point here. The applicant’s case is that the investigations were commenced purely to achieve an extraneous purpose and were not geared to the vindication of wrong doing on the part of the applicant. In principle the applicants do not have a problem with investigations but their argument is that the 1st respondent should not use his power under the law to advance the interests of the 3rd and 4th respondents in what is purely a commercial issue. 119.The 1st and 2nd respondents further argued that material non- disclosure does not arise since according to them, all that is required for the investigations to commence is reasonable suspicion of the commission of a crime. The respondents cited Sections 4 and 16 of the Proceeds of Crime and Anti-Money Laundering Act as a basis for the investigations. 120.The circumstances of this case in this court’s view do not point to any aspects of money laundering unless the 1st and 2nd respondents argue that the 3rd and 4th respondents in advancing credit to the applicants were complicit in acts of Money Laundering. The requirement for reasonable suspicion of commission of a crime must be interpreted to mean reasonable suspicion in the mind of the investigator. 121.According to the Respondents, whereas the civil proceedings concern the legality of the transaction documents, the criminal complaint invited investigations into the actual use of the funds, receipt of which is not disputed. 122.The duty of the police cannot extend to investigating how a borrower spends funds advanced to him by a lender. The contention by the 3rd and 4th respondents, points at issues breach of the lending agreements and the police cannot legally assume the position of ensuring that borrowers stick to the terms of borrowing. The police would clearly be engaging in the business of enforcing lending agreements which has absolutely nothing to do with investigation of criminal matters. 123.The investigator here was triggered to act by the 3rd and 4th respondents who have been shown to have withheld crucial information from the investigator. It is the view of this court that had the investigator been furnished with full information on the matter and made an objective assessment, then if any suspected crime of money laundering could have extended to the possible involvement of 3rd and 4th respondents which is not the case here. 124.The 3rd and 4th Respondents did not deny that there was a loan arrangement between them and the applicant and that indeed there are High Court proceedings that relate to the same dispute. 125.The court did not hear the 3rd and 4th respondents deny the facts as narrated by the investigator that they did not supply him with the court order, the waiver notice and there was no disclosure that the that the matter was before court. 126.The set of facts placed on record by the investigating officer point to the fact of an investigation commenced without full benefit of the status of the matter in issue. 127.The 3rd and 4th respondent set in motion the criminal justice process without making a full and frank disclosure of facts to the investigator thus in effect, they have come to equity with dirty hands. He who seeks equity must do equity. Fairness demands that when one makes a complaint to the police or any other investigative agency, they have a duty to tell the truth to the investigator so that as he sets out to investigate a matter, he does not take actions that may prejudice proceedings that are already ongoing. 128.The respondents argued that matters of sufficiency of evidence should be left to the trial court and should not form the basis of a decision to halt investigations. The court agrees with the respondents in that regard. However, the complaint in this matter is not about sufficiency of evidence but that the police are improperly engaged in an investigation calculated at aiding one of the parties in a commercial dispute. The authorities cited by the respondents in this regard do not therefore aid their case. 129.Although the court must act with caution in stopping investigations or intended prosecution, the court nevertheless cannot allow investigations that are commenced on the basis of non -disclosure of material particulars by the complainant to the investigator and which investigations are predominantly calculated at bringing pressure to bear on the applicant in order to settle what purely is a commercial debt. 130.The 3rd and 4th respondents admitted that there was a loan arrangement between them and the applicant on the other hand and that the applicant had defaulted in honoring the terms of the loan and in their view the civil suit initiated by the applicant was meant to cushion them from meeting their part of the bargain. 131.It is thus clear to this court that the 3rd and 4th respondents are frustrated lenders out to recover their money from the applicant. 132.The intention of the 3rd and 4th respondents in causing the 1st and 2nd respondents to swing into action was to get the applicants to meet the terms of the loan. The court cannot sanction an investigation that is commenced purposely to achieve a collateral purpose. 133.In Republic vs AE and 4 Others: Exparte Kenneth Kariuki Githii [2014] eKLR the court held that : “It is therefore clear that whereas the discretion given to the Respondent to prosecute criminal offences is not to be lightly interfered with, that discretion must be properly exercised and where the Court finds that the discretion is being abused or is being used to achieve some collateral purposes which are not geared towards the vindication of the commission of a criminal offence such as with a view to forcing a party to submit to a concession of a civil dispute, the Court will not hesitate to bring such proceedings to a halt." 134.The facts of this matter leave no doubt in the court’s mind that the investigations and intended prosecutions is geared towards forcing the applicants to submit to concession of the dispute surrounding the loan arrangement. 135.The respondents have jointly argued that the law does not forbid the concurrent initiation of a civil and criminal case. All the respondents cited Section 193A of Criminal Procedure Code as the authority upon which the investigations were commenced. The court is clear in its mind that the intention of parliament in enacting Section 193A was to allow concurrent civil and criminal proceedings only where in a civil matter there are attendant aspects of criminality but the section was not meant to criminalize purely civil matters. 136.This position was confirmed by the Court of Appeal in Commissioner of Police and Director of Criminal Investigations Department vs. Kenya Commercial Bank and Others Nairobi Civil Appeal No. 56 of 2012 [2013] eKLR when it held:“While the law (section 193A of the Criminal Procedure Code) allows the concurrent litigation of civil and criminal proceedings arising from the same issues, and while it is the prerogative of the police to investigate crime, we reiterate that the power must be exercised responsibly, in accordance with the laws of the land and in good faith. What is it that the company was not able to do to prove its claim against the bank in the previous and present civil cases that must be done through the institution of criminal proceedings? It is not in the public interest or in the interest of administration of justice to use criminal justice process as a pawn in civil disputes. It is unconscionable and travesty of justice for the police to be involved in the settlement of what is purely dispute litigated in court. This is case more suitable for determination in the civil court where it has been since 1992, than in a criminal court. Indeed, the civil process has its own mechanisms of obtaining the information now being sought through the challenged criminal investigations.” 137.In the instant case this court wonders what is it that the 3rd and 4th respondents cannot prove in the civil suit that must be done within a criminal trial? 138.It is not proper in law for investigative agencies to devote scarce public resources in investigating what are prima facie purely civil disputes as that would expend the precious time and meagre resources that would otherwise be directed towards the resolution of more pressing issue of a criminal nature. It is not in the public interest nor is it in the interests of the administration of criminal justice to allow investigations that are predicated on material non- disclosure to continue more so considering that there are active civil proceedings that touch directly on substratum of the issues under investigation. 139.In Machakos High Court Constitutional Petition No. 8 of 2018 John Ngungu Ngonzi Versus Director of Criminal Investigations & 3 Others , Odunga J (as he then was) held:“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” 140.The applicant has demonstrated that the issues that the 1st and 2nd respondent have been invited to investigate are precisely the subject of the civil suit and that at the time the complaint was made to the police there was an active court order touching on the matter which the investigator admitted was not availed to him by the complainants. The failure by the 3rd and 4th respondents to disclose the fact of the civil suit was to say the least an act of bad faith and as such the investigations are tainted with mala fides. 141.The court cannot hesitate from halting investigations that are actuated by malice and are calculated to achieve a collateral purpose. The complainant was under a legal duty to disclose to the investigator that the High Court was seized of the matter to guard against any potential breach of the court order by the investigator in the course of his investigations. In Joram Mwenda Guantai vs. The Chief Magistrate, Nairobi Civil Appeal No. 228 of 2003 [2007] 2 EA 170, the Court of Appeal held:“It is trite that an order of prohibition is an order from the High Court directed to an inferior tribunal or body which forbids that tribunal or body to continue proceedings therein in excess of its jurisdiction or in contravention of the laws of the land. It lies, not only in excess of jurisdiction or absence of it but also for a departure from the rules of natural justice. It does not, however, lie to correct the course, practice or procedure of an inferior tribunal, or a wrong decision on the merits of the proceedings...Equally so, the High Court has inherent jurisdiction to grant an order of prohibition to a person charged before a subordinate court and considers himself to be a victim of oppression. If the prosecution amounts to an abuse of the process of the court and is oppressive and vexatious, the Judge has the power to intervene and the High Court has an inherent power and the duty to secure fair treatment for all persons who are brought before the court or to a subordinate court and to prevent an abuse of the process of the court.” (emphasis added) 142.To subject any person natural or juristic to investigations on what purely is a commercial dispute is not only oppressive but also amounts to abuse of the legal process. Criminal investigations that are devoid of objectivity and fairness expose the concerned individuals to the risk of prosecution that is against public policy and not in the public interest. 143.An investigation commenced to undermine a legal proceeding should not be allowed to proceed. The complainants in this matter knew of the High Court order in HCCHRPET/ E078/ 2025 stopping the performance of the obligations under the agreements and their unsuccessful attempt in the High Court and the Court of Appeal to set aside the order. The 3rd and 4th respondent failed to inform the investigation officer of that fact. The action on their part was an act of bad faith. 144.The court has no doubt in its mind that the act of initiating the criminal investigations was purely intended to cause the applicants to abandon the civil suit for fear of prosecution and force them to a negotiating table with the 3rd and 4th respondents. The 1st and 2nd respondents have the discretion to initiate investigations and prosecutions under the provisions of Article 245 and 157 of the Constitution but the exercise of those powers must be within the confines of the law. 145.The 3rd and 4th respondents did not trigger the exercise of the investigative powers of the police with clean hands, mind and heart thus by causing the 1st and 2nd respondents to commence the investigations they acted capriciously with the sole aim of advancing their commercial interests thus the investigations are tainted with malice and were calculated to defeat a valid order of the court. This court cannot shut its eyes on what appears to be a clear case commencement of investigations to undermine proceedings pending in another court of concurrent jurisdiction and where it is clear that the intention is to assist one of the parties to the dispute in the civil matter. Where the High Court’s attention is drawn to such proceedings, the court must move with speed to halt the investigations in order to forestall any precipitate action that may undermine the authority of the court that issued the conservatory orders in Petition E 078/ 2025 unless the court is persuaded that there is a crime that was committed by the party against whom the investigations are proceeding. In the instant case all that the applicant is guilty of from the facts and the submissions is failure to meet their obligation under the lending agreements. That certainly cannot be a criminal offence to warrant investigations. 146.In Kuria & 3 Others vs. Attorney General [2002] 2 KLR 69, the High Court held:“The Court has power and indeed the duty to prohibit the continuation of the criminal prosecution if extraneous matters divorced from the goals of justice guide their instigation. It is a duty of the court to ensure that its process does not degenerate into tools for personal score-settling or vilification on issues not pertaining to that which the system was even formed to perform...A stay (by an order of prohibition) should be granted where compelling an accused to stand trial would violate the fundamental principles of justice which underlie the society’s senses of fair play and decency and/or where the proceedings are oppressive or vexatious...The machinery of criminal justice is not to be allowed to become a pawn in personal civil feuds and individual vendetta...The invocation of the law, by whichever party in unsuitable circumstances or for the wrong ends must be stopped, as in these instances, the goals for their utilisation is far from that which the courts indeed the entire system is constitutionally mandated to administer..” 147.This court finds that the investigations commenced by the 1st respondent are borne out of desire to make the applicants perform their obligation under the loan agreements thus they are divorced from the goals of criminal justice. The dispute is undoubtedly civil in nature and the failure by the applicants to honor their obligations under the lending agreement is the bone of contention. The police cannot assume the role of policing parties to perform contractual obligations. That would be ultra vires their constitutional and statutory mandate. 148.The court is thus satisfied that this is a fit case for the grant of a prohibition order which is hereby granted and considering the manner in which the investigations were commenced, there is good cause to issue an order for anonymization of the names of parties in reporting this matter by Kenya Law Reporting. The reporting body is ordered to anonymize the parties to protect the commercial interests of both parties. None of the parties will suffer prejudice if that is done. 149.Further, the warrants issued vide CM’s Misc. No. E019 of 2026 are hereby quashed and a prohibition order issued restraining the 1st respondent from continuing with investigations since the matter is purely civil and the 3rd and 4th respondents are basically concerned with the failure by the applicant to honor the lending terms and no evidence of the commission of any crime known in law was placed before this court to justify the continuation with the investigations. 150.It is so ordered. DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI THIS 18TH DAY OF MAY 2026.A. M. MUTETIJUDGEIn the presence of:Court Assistant: OmbunaAira Godfrey for the ApplicantMogere for 1st & 2nd AccusedObonyo for 3rd & 4th Respondents