https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7158

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT MACHAKOS** **JUDICIAL REVIEW E006 OF 2024** **MARTIN WAMBUA MURIAMA ……………………….APPLICANT** **VERSUS** **ODPP………………………………………………………….1ST RESPONDENT** **THE INSPECTOR GENERAL OF POLICE……….2ND RESPONDENT** **IPOA………………………………………………………….3RD RESPONDENT** **RULING** 1. The Applicant upon being leave granted filed a Judicial Review Application seeking orders of certiorari, prohibition and mandamus against the Director of Public Prosecution (DPP), Inspector General of Police (IG(, IPOA and the Magistrates’ court at Mavoko and Machakos. 2. The applicant seeks the following orders; 3. An order of Certiorari to remove into this Honourable Court and quash the charge preferred against the ex parte Applicant by the 1st Respondent in Machakos MCCR No. E041 of 2024; Republic -vs- Martin Wambugu Muriama. 4. An order of Prohibition to prohibit, the 5th Respondent from taking any further proceedings in Machakos MCCR No. E041 of 2024; Republic -vs- Martin Wambugu Muriama. 5. An order of Mandamus to compel the 4th Respondent to proceed with hearing of Mavoko Inquest No. 5 of 2019; Urbanus Wambua Ndonye to its logical conclusion. 6. An order of prohibition to prohibit the 2nd and 3rd Respondents from arresting, summoning and otherwise requiring attendance of the ex parte Applicant in any Court pending hearing and determination of Mavoko Inquest No. 5 of 2019; Urbanus Wambua Ndonye 7. Costs of the application 8. The facts leading to the filing of this application are that the Applicant is a Police Officer who was deployed during the 2017 repeat presidential elections to maintain order in Mlolongo. During the operation, the police were confronted by violent youth and force was used to disperse them. In the process a civilian Urbanus Wambua Ndonye later died from the gun shot injuries. 9. Following this an inquest (Mavoko Inquest No 5 of 2019) was initiated to investigate the death, and the applicant testified. While the inquest was still ongoing the applicant was charged with the offence of manslaughter. 10. The Applicant thus contends that the criminal charges were instituted prematurely since the inquest had not been concluded and key witnesses had not testified. That the DPP improperly terminated the inquest by a letter, which they argue was unlawful as it is only the court that has such powers. Further, that the decision to charge him violated his rights to a fair administrative action under Article 47 and on equality before the law. 11. He further contends that the DPP undermined the ongoing judicial process by charging him before the completion of the inquest. He therefore, urged that his prosecution is premature, unlawful and unconstitutional since the inquest should be allowed to run its full course before any criminal charges are instituted. Thus, he stated that the DPP actions are capricious, procedurally unfair and contrary to the administration of justice. 12. In response to the application the 3rd respondent filed its replying affidavit raising two key issues namely whether the application meets the threshold for grant of judicial review remedies and whether the plea-taking in Machakos criminal case should be deferred pending the inquest. 13. On the first issue the 3rd respondent submitted that the applicant has not demonstrated illegality, irrationality or procedural impropriety in the decision to charge him. That judicial review only examines the decision making process, not the merits of the case. They relied on the case of ***Pastoli v Kabale District Local Government Council* and *Republic v PPARB ex parte Rongo University* to** emphasize that judicial review remedies are granted only in exceptional circumstance. 14. On the second issue it was deponed that the decision to charge was based on sufficient evidence establishing a prima facie case. That IPOA which has the exclusive mandate to investigate deaths caused by police conducted independent investigations, gathered evidence and recommended prosecution. Thus, it stated that it was unnecessary and duplicative to proceed with the inquest as it only a fact finding exercises and not a determination of guilt 15. They thus urged that the Applicant should therefore stand trial rather than seek to avoid prosecution through judicial review. That the Applicant is deploying delay tactic and abusing the Court process. Further that there is no legal requirement to await completion of an inquest before instituting criminal proceedings hence they urged that the court should exercise restrain and avoid interfering with the DPP’s prosecutorial discretion except in exceptional cases. 16. The Application was canvased by way of written submissions. As at the time of writing this only the Applicant and 3rd Respondent had filed their submissions. **Applicant’s submissions** 1. The Applicant submits that the decision by the 1st Respondent to charge him with manslaughter in **Machakos MCCR No. E041 of 2024** is unlawful, procedurally improper, and amounts to an abuse of the court process. 2. It is his case that at the time the charges were preferred, **Mavoko Inquest No. 5 of 2019** concerning the same death was still pending and had substantially progressed, with most witnesses having already testified. The Applicant argues that the 1st Respondent, having initiated the inquest, acted unreasonably and in bad faith by instituting criminal proceedings before the inquest was concluded, thereby **pre-empting an ongoing judicial process.** 3. The Applicant contends that this conduct amounts to forum shopping, as the prosecution was commenced in a different court while the inquest was pending before another court. He asserts that such action undermines the integrity of the judicial process and is indicative of an abuse of prosecutorial power. 4. Further, the Applicant submits that under Section 388 of the Criminal Procedure Code, the Director of Public Prosecutions lacks authority to institute criminal proceedings while an inquest is ongoing, and equally lacks power to unilaterally terminate inquest proceedings. He argues that the purported termination of the inquest by way of a letter was ultra vires, as only the court seized of the inquest has jurisdiction to terminate or determine it. 5. It is also contended that the impugned decision violated his constitutional rights, particularly the right to fair administrative action under Article 47, the right to equality before the law under Article 27, and the right to a fair trial under Article 50. The Applicant further invokes Article 157(11) of the Constitution, arguing that the DPP is under a duty to exercise prosecutorial discretion in a manner that avoids abuse of the legal process. 6. The Applicant acknowledges that the DPP has discretion to institute criminal proceedings, but argues that such discretion is not absolute and is subject to constitutional and statutory limitations. He submits that the Court has jurisdiction to intervene where prosecutorial power is exercised in a manner that is arbitrary, unfair, or inconsistent with the interests of justice. 7. Reliance is placed on several authorities, including **Dennis Manyibe v DPP [2023] eKLR**, **Escol Kibiwott Kosgei v DPP [2018] eKLR**, and **Laban Kipsang Tendet v DPP [2016] eKLR**, to support the proposition that criminal proceedings commenced before the conclusion of an inquest may constitute an abuse of process and warrant judicial intervention. 8. In conclusion, the Applicant urges the Court to find that the decision to charge him was **premature, unlawful, and unconstitutional**, and to grant the orders sought, including quashing the criminal proceedings and directing that the inquest be concluded before any prosecution is undertaken. Thus, they urged the court to find that the application is misconceived, lacks merit and constitutes an abuse of court process. **3rd Respondent submissions** 1. The 3rd Respondent opposes the application and submits that the Applicant has failed to meet the threshold for the grant of judicial review remedies. 2. It is contended that the decision to charge the Applicant with manslaughter was **lawful, proper, and based on independent investigations** conducted pursuant to the 3rd Respondent’s statutory mandate under the **Independent Policing Oversight Authority Act,** which confers upon it the duty to investigate deaths arising from police action. 3. The 3rd Respondent submits that upon completion of investigations, it established a prima facie case and recommended prosecution to the Director of Public Prosecutions, who, in exercise of constitutional authority under Article 157, independently reviewed the evidence and approved the charges. 4. It is further argued that the Applicant has not demonstrated that the decision to charge was tainted by illegality, irrationality, or procedural impropriety, which are the established grounds for judicial review. The Court is urged to note that judicial review is concerned with the decision-making process rather than the merits of the decision, and should not be used to determine the innocence or otherwise of the Applicant. 5. On the issue of the inquest, the 3rd Respondent submits that there is no legal requirement that criminal proceedings must await the conclusion of an inquest. It maintains that an inquest is merely a fact-finding process, and once investigations have been concluded and culpability established, such proceedings are rendered unnecessary. 6. The 3rd Respondent further argues that the Applicant’s reliance on the pending inquest is a tactical attempt to delay and obstruct the course of justice, and that the present application amounts to an abuse of the court process. 7. It is its position that the Court ought to exercise restraint and accord deference to the constitutional mandate of the Director of Public Prosecutions, intervening only in exceptional circumstances where abuse of process is demonstrated, which has not been established in this case. 8. In conclusion, the 3rd Respondent urges the Court to find that the application is devoid of merit, dismiss it with costs, and allow the criminal proceedings to proceed so that the Applicant can answer to the charges against him. **Analysis and Determination** 1. Having considered the Notice of Motion, the affidavits in support and opposition, as well as the rival submissions by the parties, the issues that arise for determination are: 2. Whether the Applicant has met the threshold for the grant of judicial review orders; 3. Whether the decision to charge the Applicant during the pendency of the inquest was unlawful or an abuse of process; 4. Whether the Court should intervene and grant the orders sought. 5. It is trite law that judicial review is concerned not with the merits of a decision, but with the decision-making process. The classical grounds upon which judicial review remedies may issue are illegality, irrationality, and procedural impropriety, as set out in ***Pastoli v Kabale District Local Government Council*** [2008] 2 EA 300 and consistently applied in our jurisdiction. 6. In the present case, the burden lay on the Applicant to demonstrate that the decision by the 1st Respondent to prefer charges was tainted by any of these grounds. 7. The 3rd Respondent maintains that the decision to charge was based on independent investigations, undertaken pursuant to its statutory mandate, and that the evidence gathered disclosed a prima facie case, which was subsequently approved by the 1st Respondent in exercise of its constitutional mandate under Article 157 of the Constitution. 8. The Applicant, on his part, does not challenge the existence of investigations per se, but contends that the timing and manner in which the prosecution was instituted renders it unlawful. 9. The crux of the Applicant’s case is that the institution of criminal proceedings during the subsistence of Mavoko Inquest No. 5 of 2019 amounted to an abuse of process, was premature, and offended both statutory and constitutional safeguards. 10. It is not disputed that, an inquest relating to the same death had been commenced; the inquest had substantially progressed, with several witnesses having testified; before its conclusion, the Applicant was charged with manslaughter in separate criminal proceedings. 11. The Applicant argues that under Section 388 of the Criminal Procedure Code, the DPP lacks authority to commence criminal proceedings during an ongoing inquest and cannot unilaterally terminate such proceedings. 12. The Respondents, on the other hand, contend that, there is no legal bar to instituting criminal proceedings before the conclusion of an inquest; an inquest is merely a fact‑finding process, and once sufficient evidence exists, prosecution may properly be commenced; and that the DPP retains independent constitutional discretion under Article 157 to institute proceedings. 13. From the statutory framework, an inquest serves as an inquisitorial mechanism to establish the cause and circumstances of death and, where appropriate, to identify culpable persons. However, it is not a trial and does not determine criminal liability. 14. While it is desirable that an inquest runs its full course, the law does not expressly bar the DPP from instituting prosecution where investigations, whether by IPOA or other agencies, have yielded sufficient evidence. Indeed, the decision to prosecute is grounded on the existence of a prima facie case, and not necessarily on the completion of an inquest. 15. It is also important to underscore that the role of this Court in judicial review is not to determine whether the evidence is sufficient to sustain a conviction, but whether the process leading to the decision was lawful. No such evidence has been placed before this court to demonstrate that the decision to prosecute was irrational, based on irrelevant considerations or procedurally unfair to the extent of violating the rules of natural justice. 16. While the timing of the prosecution in the face of an ongoing inquest may raise questions of prudence, it does not, without more, amount to illegality or abuse of process. 17. Courts have consistently held that they ought to exercise restraint in interfering with prosecutorial decisions. Intervention is only warranted in exceptional circumstances. 18. In the present case, the Applicant has not demonstrated that the prosecution meets this threshold. On the contrary, the material before the Court shows that, investigations were conducted; evidence was gathered and a recommendation to prosecute was made and reviewed. The proper forum for testing the sufficiency and credibility of that evidence is the trial court, not a judicial review court. 19. In light of the foregoing, I find that the Applicant has not established that the decision to charge him was tainted by illegality, irrationality, or procedural impropriety. In the circumstance the application is dismissed. 20. Orders accordingly. Dated, signed and delivered at Machakos this 15th day of May, 2026 **RHODA RUTTO** **JUDGE** **In the presence of;** …………………………………..Applicant ………………………………..Respondent Selina Court Assistant