https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12832

**REPUBLIC OF KENYA** **IN THE HIGH COURT AT MAKUENI** **CONSTITUTIONAL PETITION NO. E002 OF 2024** **IN THE MATTER OF THE CONSTITUTION OF THE REPUBLIC OF KENYA** **AND** **IN THE MATTER OF ARTICLES 2(1), 3(1), 10(1), (2) a, b & c, 20 (1), (2), (3) a & b, (4) a & b 27 & 73 OF THE CONSTITUTION** **AND** **IN THE MATTER OF THE INFRINGEMENT OF ACCESS TO JUSTICE, FAIR TRIAL, FREEDOM OF MOVEMENT, HUMAN DIGNITY AND SECURITY ARTICLES 27(1), 28, 29, 48, 49 & 50** **AND** **IN THE MATTER OF THE ADVOCATES ACT-CAP 16 OF THE LAWS OF KENYA** **AND** **IN THE MATTER OF THE NATIONAL POLICE SERVICE ACT-CAP 84 LAWS OF KENYA** **AND** **IN THE MATTER OF THE OFFICE OF THE DIRECTOR OF PUBLIC PROSECUTIONS ACT CAP 6B OF THE LAWS OF KENYA** **AND** **IN THE MATTER OF THE EVIDENCE ACT-CAP 80 OF THE LAWS OF KENYA** **AND** **IN THE MATTER OF ARTICLES 165 a, b, d(i) & (ii), 4 OF THE CONSTITUION AS READ WITH SECTION 20 & 21 OF THE CONSTITUION OF KENYA (PROTECTION OF FUNDAMENTAL RIGHTS AND FUNDAMENTAL FREEDOMS PRACTICE & PROCEDURE RULES), 2023** **BETWEEN** **JAMES MBUGUA MBURU.......….......................................................1ST PETITIONER** **GABRIEL MUEMA……………………………………..……….…………2ND PETITIONER** **-VERSUS-** **DIRECTOR OF PUBLIC PROSECUTIONS........................................1ST RESPONDENT** **INSPECTOR GENERAL OF POLICE ..............................................2ND RESPONDENT** **THE HON. ATTORNEY GENERAL ………………………...……......3RD RESPONDENT** **JUDGMENTS** **Introduction** 1. The Petition before me is dated 13/03/2024 seeking the following reliefs; 2. **A declaration that the arraignment, charging and prosecution of the 1st Petitioner in Criminal Case 134 of 2024 at Kilungu Law Courts as an Advocate for performing professional duties in Civil Suit No. 51 of 2015 at Machakos Law Courts is an infringement and affront to the Constitution of Kenya, 2010 and a violation of the 1st Petitioner’s rights under Articles 27(1), 28, 29, 48, 49 and 50 of the Constitution.** 3. **An order of Prohibition do issue against the Respondents together with their agents from arraigning, charging or prosecuting the 1st Petitioner in relation to Criminal Case No. E134 of 2024 at Kilungu Law Courts.** 4. **An order of Certiorari do issue bringing into this court and quashing Criminal Case No. E134 of 2024 at Kilungu Law Courts against the 1st Petitioner and any other charge that relates to Civil Suit No. 51 of 2015 at Machakos Law Courts.** 5. **General and exemplary damages for violation of the Petitioners’ fundamental rights and freedoms.** 6. **Costs of and incidental to this Petition.** 7. The Petition is supported by the affidavit of the 1st Petitioner sworn on the same day. He deposed that he is an Advocate of the High Court of Kenya having signed the Roll of Advocates on 10/12/2012 and practicing as such in the name and style of J. Mbugua Mburu & Associates Advocates since November 2018. 8. He deposed that the 2nd Petitioner is his client in Machakos Civil Suit No. 51 of 2015: Manthi Ndua Mwove -vs- Gabriel Muema as per the Notice of Appointment exhibited as **MM2**. That, on instructions of his client, he prepared, signed and filed a consent dated 07/10/2021 which was adopted as an order of the court on 26/10/2021. That, the consent and order, exhibited as **MM3 & 4** respectively, have neither been set aside, reviewed or appealed against hence remain valid court orders. 9. That, on 06/03/2024, he was served with Court Summons requiring him to attend on 11/03/2024 at Kilungu Law Courts and upon appearing in court on the said date in the company of his Advocate Ms. Naomi Mutinda, they were served with a Charge Sheet stipulating the offence of making a document without authority **Contrary to** **Section 357(a) of the Penal Code** and uttering a false document **Contrary to Section 353 of the Penal Code**. 10. That, the alleged offences related to the said consent and the Complainant in the charge Joshua Mutua was not a party in the suit and played absolutely no role therein. That, his Advocate argued for deferment of plea as the documents relating to the charge had not been supplied. That, the trial court allowed the deferment of plea on condition that a bond of Kshs. 100,000/= and a surety of similar amount would be availed. 11. That, his Advocate raised a preliminary issue on the territorial jurisdiction of the court to hear and determine the matter as the alleged offence arose at Machakos Law Courts within Machakos County while the charge was preferred at Kilungu Law Courts within Makueni County. 12. He deposed that the submissions by the prosecution counsel alleged that the 2nd Petitioner was charged with the offence of trespass at Kilungu Law Courts (Criminal Case 383 of 2023: R -vs- Gabriel Muema & Anor) and that he raised the defence of having entered the land in issue pursuant to the court order in Civil Suit No. 51 of 2015. That, the DPP was therefore seeking to charge the 1st Petitioner and consolidate the charges with those preferred against the 2nd Petitioner. 13. He further deposed that the charges in Criminal Case 134 of 2024 serve no meaningful purpose other than to harass, embarrass, spite and intimidate him. That, the violations of the Constitution are as follows; 14. **Violation of Article 27(1) by unequal application of law by the Respondents.** 15. **Violation of Article 28 by failure to respect the dignity of the Petitioners.** 16. **Violation of Article 29(1) by; arbitrarily depriving him of his freedom and security of person; treating him in a cruel, inhuman and degrading manner; charging him in Makueni County while the alleged offence occurred in Machakos County.** 17. **Violation of Article 48 by seeking for an imposition of an unreasonably high amount of cash bail and punitive bond terms.** 18. **Violation of Article 49 by curtailing his right to communicate with his Advocate and a potential defense witness by preferring charges against the witness.** 19. **Violation of Article 50 by seeking to charge a potential defense witness and steal a match in Criminal Case 383 of 2023 at Kilungu Law Courts.** **The Responses** 1. The DPP and I.G of police opposed the Petition through the Replying Affidavit sworn by P.C Solomon Kirwa on 09/04/2024. They further relied on the following Grounds of Opposition dated 29/07/2024; 2. **The Petitioner's application does not meet the prerequisite threshold for the grant of the Orders sought.** 3. **The Petitioner has not demonstrated that his rights have been violated or that there is a danger of any violations of his Constitutional rights by the Respondents.** 4. **It is not enough to merely state that the rights of the Petitioner have been violated and infringed without specifically stating the nature of violations of such rights.** 5. **The 1st Respondent is conferred with state powers to prosecute under Article 157 of the Constitution.** 6. **The 2nd Respondent is conferred with the mandate to detect a crime, investigate and apprehend offenders as provided for under section 24 of the National Police Service Act.** 7. **The Petitioners’ claim that George Syengo and Charles Mutua Nzayo acquired registration of the subject land after misrepresenting facts to the court in Kitui Succession Cause No. 63/2013 are live matters pending before court.** 8. **The Petitioner has filed applications for revocation of the questioned grants in Kitui Succession Cause No. 63/2013 and Kitui Succession Cause No. 64/2013 which matters are alive and pending before court and they should be heard and determined before this Petition is heard by this court.** 9. **The allegations by the Petitioner on impersonation and use of fictitious names by persons referred to as Zakyo Mbuvi, Nzakyo Mbuvi, Nzakyo Vuvi, Charles Mutua Zakayo, Charles Mutua Zakayo, Mwema Syengo and George Muema Syango could be mispronunciations and error that could have resulted from the Kamba accents but all the persons involved are all members of the same extended family.** 10. **The application herein does not disclose any cause of action against the Respondents.** 11. **The Petition was filed in bad faith, is misconceived, premature and an abuse of the court process hence meant to derail and defeat the cause of justice.** 12. P.C Solomon Kirwa deposed that he is attached to the Directorate of Criminal Investigations, Mukaa Sub-County and therefore one of the Investigating Officers in this matter, authorized by the DPP and I.G of Police hence competent to swear the affidavit. That the DPP is an independent constitutional office established under **Article 157 of the Constitution**. That, the DPP is independent and this court should not interfere in the running of its office and exercise of its discretion within the limits provided by law. 13. He deposed that the DPP is mandated, by the Constitution and other legislation, to institute and undertake criminal proceedings, take over and continue any criminal proceedings and to discontinue any criminal proceedings at any stage before judgment is delivered. That, such exercise of power is not subject to direction or control by any authority. 14. He deposed that the I.G of Police is established under **Article 245 of the** **Constitution** and exercises independent command over the National Police Service. That, according to advice from the Prosecution Counsel, the decision to charge is made independently by the DPP based on sufficiency of evidence and the public interest underlying prosecution of the offence(s). That, the orders sought by the Petitioners ought not to be granted as they have effects of usurping and crimping powers and mandate of the DPP. 1. That, the I.G of Police is carrying out investigations following a complaint from Mr. Joshua Mutiso Nzioka on behalf of Barazani-Konza Self Help Group against the 2nd Petitioner who had forcibly detained a parcel of Land Reference Konza Agricultural Plot No. 494 (the land). That, the investigations revealed that there was a civil case CMCC 51 of 2015; Manthi Ndua Mwove -vs- Gabriel Muema, at Machakos Law Courts which had been filed by M/s Sila & Co. Advocates seeking eviction of the 2nd Petitioner from the subject land. That, the 2nd Petitioner was represented by the 1st Petitioner in the case. 2. That, further investigations revealed that the Plaintiff in the said civil case had acquired the land from Konza Ranching & Farming Co-operative Society by virtue of his membership No. 227 but the 2nd Petitioner had occupied the land thereby necessitating the Plaintiff to file for eviction. That, unfortunately, the Plaintiff died on 16/02/2016 before conclusion of the eviction case and according to Advocate Sila, the deceased’s family have never obtained Letters of Administration to enable substitution in the eviction case. 3. That, the case was subsequently dismissed for want of prosecution on 28/11/2018 but again reinstated on 12/05/2021. That, thereafter, the 1st Petitioner appeared severally for either party and on various occasions instructed other counsel to hold brief for Mr. Sila who was all along not aware that the matter had been reinstated. That, the 1st Petitioner filed an application for substitution of the deceased Plaintiff with his family members whom he alleged were the legal Administrators of the estate of the deceased Plaintiff. 4. He averred that, to support the said application, the 1st Petitioner filed a fake Certificate of Grant **(SK-2)** which named four Administrators of the deceased’s estate. That, on 07/10/2021, the 1st Petitioner prepared and filed a consent **(SK-3)** alleging the same to have been executed by himself on behalf of the 2nd Petitioner on one part and Advocate Muchae (deceased) on the other part on behalf of the Plaintiff. 5. That, the Civil Court adopted the consent on 26/10/2021 thereby substituting the deceased Plaintiff with the 1st Petitioners family members and further declaring the 2nd Petitioner as the legal owner of the land. That, the family members of the deceased Plaintiff are unaware of the substitution and they confirmed that they have never obtained Letters of Administration. 6. He averred that, according to investigations, the 2nd Petitioner claimed ownership of the land on the basis of a court order in the Civil Case and declined to vacate hence he was charged with the offence of Forcible Detainer vide Kilungu Criminal Case No. 383 of 2023 which is still pending. That, during investigations, the 1st Petitioner was afforded an opportunity to make a statement with the police in observance of the rules of natural justice and provisions of **Article 47 of the Constitution**. 7. He deposed that the police have a duty to investigate any complaint once it is made and have a constitutional mandate to detect and prevent crime. That, the predominant reason for the institution of the criminal case cannot therefore be said to have been the vindication of the criminal justice as long as the prosecution and those charged with the responsibility of making the decisions to charge act in a reasonable manner. 8. That, the trial court has already ruled that it has jurisdiction to hear the matter and that the charge is not defective. That, according to advice from the Prosecution Counsel, the bond terms issued to the 1st Petitioner are not excessive. That, indeed the prosecution intends to consolidate the two cases against the two Petitioners since both are yet to proceed for hearing, the witnesses are the same and the charges arise from the same subject matter. 9. He deposed that the Petitioners have not demonstrated that the DPP and I.G of Police acted without or in excess of the powers conferred by the law or that they acted maliciously or infringed, violated, contravened or in any other manner failed to comply with or respect and observe provisions of the Constitution or any other law. That, according to advice from the Prosecution Counsel, the Petitioners have failed to prove violation of their fundamental rights and freedoms and/or infringement of any law or regulation or abuse of discretion and breach of rules of natural justice hence the Petition should be dismissed with costs. 10. The 2nd and 3rd Respondents through the A.G’s office also field Grounds of Opposition dated 25-4-2024 thus advancing almost similar grounds like those advanced by the DPP above stated. 11. The Petition was canvassed through *viva voce* evidence and written submissions. **The 1st Petitioner’s Testimony** 1. PW1 James Mbugua Mburu the 1st Petitioner herein gave his sworn testimony basically reciting the content contained in his affidavit in support of the Petition. He testified that he received instructions sometime in 2020 from the 2nd Petitioner Gabriel Muema to act for him in Civil Suit No. 51/2015 at Machakos CM’S Court where he was the Defendant. That Prior to coming on record, the 2nd Petitioner Gabriel Muema had been represented by Othieno & Othieno Advocates. That by the time he received instructions, the matter had been dismissed for want of prosecution. 2. He told the court that his brief was to revive the suit and seek to amend the defence as well as raise a Counter Claim. That he filed the application on behalf of his client and served on Advocates on record for the Plaintiff. He stated that the Plaintiff did not oppose the application which was allowed and the matter was set down for a mention date. That he served the subsequent mention date upon Counsel for the Plaintiff Sila & Co. Advocates who acknowledged the same. 3. That, later on, it was indicated that the Plaintiff had passed on. He stated that, upon inquiry from his client on the issue of death of the Plaintiff, his client promised to get in touch with the family of the Plaintiff and revert back to him. On the next client meeting, his client presented to him a Certificate of Confirmation for Grant in CM Succ Cause 70/2018 (Makueni) Re; Estate of Manthi Ndua Mwove *alias* Manthi Ndua dated 20/02/2020. That his client equally informed him that the three Administrators of the estate Benedict Ndua, Benjamin Vaati, Reuben Muthama who were sons to the deceased were willing to cooperate. 4. That the Administrators went to his office and after discussions, they tentatively agreed on the content of the consent dated 07/10/21. According to his testimony, he told them to go speak with their Advocate so that they could record that consent. It was his testimony that he was served with Notice of Change of Advocates for the Plaintiff J.K. Muchai who came on board. 5. That they had some correspondence and finally agreed on the content of the consent dated 07/10/21. Consequently, he drafted the consent and availed it to Ms Muchai. He said that the firm of Muchai allegedly signed the consent, returned it and had it filed in court on 07/10/21 and then in the presence of both counsel it was adopted and then sealed by the court on 27-10-2021 under file number CMCC 51/2015. He stated that part of the consent was that the 2nd Petitioner, Defendant in that case was allocated by the Administrators of the estate the property in contention in the Cr. Case (Plot No. 494 at Konza Ranching & Farming Society Ltd). 6. That he conducted the transaction in his capacity as an Advocate and to his knowledge, the order has never been challenged, set aside, reviewed or appealed against. 7. He stated that he was surprised to be charged yet he had not been summoned to record any statement nor received any information, document or anything to show why he was being charged. 8. It was his further testimony that, he is bound by rule of Advocate/Client confidentiality and his constitutional right to fair hearing will be thoroughly impeded as he will not be able to offer rebuttal in the criminal trial. That for 2nd Petitioner, it will be unfair because one of his witnesses (PW1) will be his co-accused and the weight of evidence attached to a co-accused is not much. That his right to a fair hearing will be equally thoroughly impeded. That he is left at a cross road on whether to testify or not to testify upon the consolidation. 9. He questioned the rationale in charging him at Kilungu Court for an offence which occurred at Machakos. 10. He stated that, if he had been charged in Machakos, he would attend to his matters and attend to court. That, he will have to get an Advocate to represent him which is an expense for him i.e. catering for transport from Machakos to Kilungu. That, some of the witnesses he may require are Hon. Ag. Kibiru, Hon. Kenei and the Executive Officer Machakos Law Court to avail the proceedings. That, the cost impedes on his right to defend himself. That, these officers have since been transferred from Machakos Law courts. He stated that those charges would not stand the scrutiny of law. That the discretion of ODPP is not absolute as per **Article 157 (II).** 11. He said that the decision of the CM’s court is still a valid court order and the reason for being charged is that the Respondents are not happy with CMCC 51/2015. That they intend to re-litigate it in the criminal proceedings so that they can reopen it as the window for appeal/review has lapsed. That, at the time PW1 was proceeding with the case, Joshua Mutiso Nzioka was not a party. According to him, Barazani Group were strangers to him. 12. He said that if he had been asked to shed light on the matter, he would not be facing the charges. That, there was an abuse of power by the 1st and 2nd Respondent. He urged that his prayers be granted. 13. On cross-examination by **Ms. Mutindi** for the 3rd Respondent, he was asked whether he had filed the Petition on behalf of the 2nd Petitioner or with his authority and his response was that they filed the Petition together but the 2nd Petitioner had not filed an affidavit. 14. He said that he was never arrested by police but was detained on 11/03/24 as he waited for pre-bail to be processed. That, he has never taken plea. That, he was given summons when he went to court and was put in a cell. 15. The 1st and 2nd Respondents did not cross-examine the Petitioner hence opted to proceed by way of written submissions. **The Petitioner’s Submissions dated 12-1-2026.** 1. The issues for determination were identified to be; 2. **whether Kilungu Law Courts has territorial Jurisdiction to hear and determine Kilungu Criminal Case No. 134 of 2024;** 3. **Whether the principle of Advocate-Client Confidentiality and Privilege applies;** 4. **Whether the Petitioner’s Constitutional Rights and Freedoms, as detailed in the Petition, have been infringed and/or violated; and** 5. **Whether the Petitioners are entitled to the prayers sought.** 6. With regard to the issue of territorial jurisdiction of Kilungu Law Courts, reference was made to **Section 6 of the Magistrate’s Court Act** for the submission that Magistrates derive authority to exercise criminal jurisdiction from the Criminal Procedure Code or any other written law. Further reference was made to **Section 71 and 72 of the Criminal Procedure Code** for the submission that trials should be conducted in a manner that is convenient to the parties hence necessary to try the case at the local limits of where the offence occurred or where the accused person was arrested. Reliance was placed on the case of **Elsek Osman Erdinc -vs- Republic [2021] eKLR** where the court stated that; **“The rationale is that Section 71 of the Criminal Procedure Code provides *inter alia* that every offence shall ordinarily be tried by a Court within the local limits of whose jurisdiction it was committed or within the local limits of whose jurisdiction the accused person was apprehended, or is in custody on a charge for the offence…”** 1. It was submitted that the power to try a case should exist from the onset of the matter and proceedings taken without jurisdiction are invalid hence the proceedings in Kilungu Criminal Case No. 134 of 2024 should be rendered null and void. Reliance was placed on the case of **Phoenix of E.A. Assurance Company Limited -vs- S. M. Thiga T/A Newspaper Service [2019] eKLR** where the court stated; **“Jurisdiction is primordial in every suit. It has to be there when the suit is filed in the first place. If a suit is filed without jurisdiction, the only remedy is to withdraw it and file a competent one in the court seized of jurisdiction. A suit filed devoid of jurisdiction is dead on arrival and cannot be remedied. Without jurisdiction, the Court cannot confer jurisdiction to itself.”** 1. On the issue of Advocate-Client confidentiality, reliance was placed on the case of **Manani Lilan & Mwetch Co. Advocates -vs- Veronica Sum, ELD MISC. CIV. APPL. 63 of 2019** where the court stated; **“...the importance of the privilege was acknowledged by the English Court of Appeal in Conlon vs. Conlon Limited [1952] 2 All ER 462 with the court observing that the privilege has been zealously guarded by the courts as long as the history of the law goes and that there are only two instances in which it is lost; if something of a criminal nature is involved and if there is waiver by the client. In particular, the court observed that: -** **“What is the rule [as to privilege] and what is the meaning of the rule? …The object and meaning of the rule is this; that as, by reason of the complexity and difficulty of our law, litigation can only be properly conducted by professional men, it is absolutely necessary that a man, in order to prosecute his rights or to defend himself from an improper claim, should have recourse to the assistance of professional lawyers, and it being so absolutely necessary, it is equally necessary, to use a vulgar phrase, that he should be able to make a clean breast of it to the gentlemen whom he consults with a view to the prosecution of his claim, or the substantiating of his defence against the claim of others; that he should be able to place unrestricted and unbounded confidence in the professional agent, and that the communication be so makes to his should be kept secret, unless with his consent (for it is his privilege, and not the privilege of the confidential agent), that he should be enabled properly to conduct his litigation. That is the meaning of the rule.”** **15. Furthermore, in King Woolen Mills Ltd & Another vs Kaplan & Stratton Advocates [1990-1994] E. A 244 it was held that;** **“… the fiduciary relationship created by the retainer between client and advocate demands that the knowledge acquired by the advocate while acting for the client be treated as confidential and should not be disclosed to anyone else without that client’s consent. The fiduciary relationship exists even after conclusion of the matter for which the retainer was created…An advocate/client privilege binds an advocate not to be compellable to disclose a client’s affairs without express authority or consent to his or her client. An advocate cannot therefore be compelled to breach the said requirement either by court or any other person. The waiver/lifting of the same can only be done by the client.”** 1. It was submitted that the Consent recorded in court in the Machakos Civil Suit in the presence of both parties was consequently adopted as an Order of the Court which to date is still valid and has never been contested. That, the said Court Order was obtained by the 1st Petitioner in his capacity as an Advocate and acting on the instructions of the 2nd Petitioner and that, neither the said proceedings nor the existence of the Advocate-Client relationship has ever been challenged. 2. It was contended that the Petitioners herein are protected against unfair prosecution under the principle of **Advocate-Client Confidentiality & Privilege**. That, this rule is for the protection of the client, the 2nd Petitioner herein, as it belongs to the client and not the Advocate and therefore can only be waived by the client and not the Advocate as held in the case of **DPP -vs- Tom Ojienda & Associates Advocates & 3 Others [2019] eKLR**. 3. It was further submitted that the Respondents are mischievously trying to circumvent the law and justice by preferring criminal charges as against the 1st Petitioner in their case against the 2nd Petitioner in order to force the 1st Petitioner to disclose information obtained from the 2nd Petitioner as his client, as they are aware that they cannot call the 1st Petitioner as a witness due to the Advocate-Client privilege. That, it is therefore clear that the Respondents are not acting in the public interest required under **Article 157 of the Constitution** but for other ulterior motives. Reliance was placed on the case of **Henry Aming’a Nyabere -vs- DPP & 4 Others Nakuru JR Appl. No. 2 of 2020** where the court stated that; **“When an advocate is, on the face of it, charged with an offence for work undertaken qua advocate, there will be a need to ascertain that the prosecution is warranted before the criminal prosecution is allowed to proceed. This is a necessary incident and corollary to the sacred advocate- client relationship. That principle is also good for public policy because it reinforces the sacred nature of Advocate- Client relationship by assuring both Advocates and public that advocates will not be whimsically hauled to court for work performed in their professional capacities. This, in turn, accentuates the independence of the Bar which is an unqualified public good in a Constitutional Democracy.”** 1. It was submitted that the 1st Respondent did not bother to defend the Petition hence the Respondents have failed to demonstrate that the 1st Petitioner acted in any way beyond his remit as an Advocate to justify being tarred by criminal prosecution consequently violating the rights of the Petitioner. 2. On the issue of violation of rights, it was submitted that in addition to the Kenyan jurisprudence, Kenya has adopted international instruments into domestic Law by virtue of **Article 2 (5) and (6) of the Constitution**, including the **Basic Principles on the Role of Lawyers adopted by the Eighth United Nations Congress (Havana 1990 Congress on the Prevention of Crime and the Treatment of Offenders).** Specific reference was made to **Principles 16,18 and 20** therein. 3. It was submitted that the Respondents violated **Articles 27 (1), 28 and 29 (1) of** **the Constitution**, respectively, by the unequal application of the Law, failure to respect the dignity of the Petitioners, depriving the 1st Petitioner of his freedom and security of Person, treating the 1st Petitioner in a cruel, inhuman and degrading manner by charging him in Makueni County for offences that allegedly occurred in Machakos County. 4. It was submitted that the Respondents violated **Article 48 of the Constitution** by seeking for denial of cash bail and instead sought the imposition of unreasonably punitive bond terms whereby the trial court ordered the 1st Petitioner to avail a bond of Kshs.100,000/= and surety of a similar amount. That, it was only upon the animated submissions of the 1st Petitioner’s counsel that the court reviewed the bond terms with an option of cash bail amounting to Kshs.80,000/=, which is still inordinately high and based and biased on the 1st Petitioner’s status as an Advocate. 5. It was contended that the Respondents violated the **Advocates Act, Articles 49** **& 50 of the Constitution and Section 134 of the Evidence Act**, respectively, by intimidating the 1st Petitioner through the institution of criminal charges to violate the Advocate-Client Confidentiality Rule, seeking to charge a potential defence witness, the 1st Petitioner, and steal a match to the detriment of the 2nd Petitioner, in Kilungu Criminal Case No. 383 of 2023 and intimidating the 1st Petitioner through the charges to release privileged information. Reliance was placed on the case of **R -vs- A.G exp Kipngeno Arap Ngeny, HC CIVIL APPL. No. 406 of 2001** where the Court stated; **“A criminal prosecution which is commenced in the absence of proper factual foundation or basis is always suspect for ulterior motive or improper purpose. Before instituting criminal proceedings, there must be in existence material evidence on which the prosecution can say with certainty that they have a prosecutable case. A prudent and cautious prosecutor must be able to demonstrate that he has a reasonable and probable cause for mounting a criminal prosecution otherwise the prosecution will be malicious and actionable.”** 1. It was submitted that the legal framework for prosecutorial decision making is detailed in the Office of the Director of Public Prosecutions Act and the National Prosecution Policy and in particular, the DPP must be satisfied that there is a realistic prospect of conviction based on admissible evidence and that prosecution is required in the public interest. It was contended that the same has not been satisfied in the instant case as the prosecution of the 1st Petitioner is solely intended to unlawfully aid the 1st Respondent in its criminal charges against the 2nd Petitioner. 2. With regard to the reliefs sought, it was submitted that this Honourable Court has the inherent jurisdiction to interfere at this stage and grant the prayers sought in the Petition as the Petitioners have proved their case and satisfied the requirements warranting the prayers. Reliance was placed on the case of **Henry Aming’a Nyabere (supra)** where, in allowing the Petition, the court opined that; “**The persecution of lawyers for their advocacy work on behalf of their clients is one of the surest ways of stifling a vibrant democracy. It is like severing the aorta of the independence of the bar. Its inimical effects on the society cannot be overemphasized.** **In the present case as is readily obvious, the charging decision by the DPP against the Applicant, an Advocate of the High Court of Kenya enlisted to perform professional service on behalf of his client, cannot even with the exercise of extreme caution and circumspection, survive the level of scrutiny required by our Constitution. The circumstances here reek of a rogue Investigations Officer who is driven by crazed animus against the 1st Interested Party which has now been transferred to her lawyer. Unfortunately, the Investigating Officer so fueled by his own animus has not found the needed moderating and modulating judgment of the DPP. These criminal proceedings should never have been begun; and a prudent prosecutor should never have signed off on the charges or defend the charging decision. The charges are a clear abuse of the criminal justice system. They are also a danger to our system of law undergirded by the independence of the bar. It is the duty of the court to quash the charges and I hereby do so”** 1. Further reliance was placed *inter alia* on the case of **Patrick Ngunjiri Muiruri -vs- DPP [2017] eKLR** where the court stated; **“On the standard the Court uses to scrutinize DPP’s use of his charging authority stated that the law and practice, then, are quite clear: while the discretion of the DPP is unfettered, it is not unaccountable. While the authority to prosecute is entirely in the hands of the DPP, it is not absolute. On the other hand, while the power of the Court to review the decisions of the DPP are untrammeled, they are not to be exercised whimsically. While the Court can review the DPP’s decisions for rationality and procedural infirmities, it cannot review them on merit.”** 1. In conclusion, it was submitted that prosecutorial decision is not absolute and must be exercised within Constitutional parameters and subject to supervisory powers of the court where there is abuse. **Submissions by the 2nd & 3rd Respondents dated 14-8-2025** 1. The issues for determination were identified to be; 2. **Whether indeed the 2nd and 3rd Respondents are in violation of the Petitioners’ constitutional rights and fundamental freedoms.** 3. **Whether the Petitioners are entitled to the reliefs sought.** 4. On the issue of violation of rights, it was submitted that the arraignment, charge and prosecution of the 1st Petitioner does not disclose in any manner, the alleged violation of his constitutional rights and freedoms. That, the Petitioners have failed to plead violation of rights with specificity and precision as is mandatorily required of any Petitioner who is claiming a violation of rights under the Constitution. Reliance was placed on the case of **Anarita Karimi Njeru -vs- R (1976-1980) KLR 1272** where the Court established that a Petitioner ought to demonstrate with precision how the Respondents’ actions and conduct constitute a violation or infringement of their fundamental rights and freedoms. 1. Further reliance was placed on the case of **Communications Commission of Kenya & 5 Others -vs- Royal Media Services Limited & 5 Others [2014] eKLR** where the Supreme Court stated as follows; **“The Petitioner has failed to demonstrate how his alleged rights were violated. To that end, in Mumo Matemu v Trusted Society of Human Rights Alliance & 5 others [2301] and in David Gathu Thuo vs Attorney General & another [2021 the Court observed that: - “Looking at the Petitioner’s pleadings and the evidence of the parties, it is my considered view that the Petitioner has not met the requirements of a Constitutional Petition. Although the Petitioner has pleaded violation of the Constitution, he has not demonstrated to the required standard how his individual rights and fundamental were violated, infringed or threatened by the Respondents.”** 1. It was submitted that the Petitioners have not adduced an iota of evidence necessary to substantiate their allegations of violation of the 1st Petitioner’s rights by the police while in the course of the exercise of their mandate. That, the Petitioners are statutorily mandated by **Section 107 of the Evidence Act, Cap 80**, to discharge the burden of proof vested on them where they assert existence of Facts. Reliance was placed on the case of **Rheir Shipping Co. SA -vs- Edmunds [1955] IWLR 948 at 955** where Lord Bravin opined as follows: **“No judge likes to decide case on the burden of proof if he can legitimately avoid having to do so. There are cases, however in which owing to the unsatisfactory state of the evidence or otherwise, deciding on the burden of proof is the only just cause to take.”** 1. Further reliance was placed on the case of **Lt. Col Peter Ngari Kagume and 7 Others -vs- AG: Constitutional Application No. 128 of 2006** where it was held that; **“…It is incumbent upon the petitioners to avail tangible evidence of violation of their rights and freedoms. The allegations of violations could be true but the court is enjoined by law to go by the evidence on record. The petitioners’ allegations ought to have been supported by further tangible evidence such as medical records, witnesses…the court is dead to speculation and imaginations and must be guided by evidence of probative value. When the court is faced by a scenario where one side alleges and the rival side disputes and denies, the one alleging assumes the burden to prove the allegation…”** 1. It was further submitted that the 1st Petitioner was arrested, arraigned in court and subsequently charged on account of a reasonable and/or probable cause that he had actually committed the said offences. That, the 1st Petitioner cannot fault the 2nd Respondent for acting on a complaint lodged with them by Joshua Mutiso Nzioka which complaint amounted to a reasonable cause and/or justification for the 1st Petitioner’s arrest and subsequent charge in court. That, the actions of the police were merely done in discharge of their statutory obligations which included *inter alia*; receiving reports concerning omissions or likelihood of commission of an offence cognizable by law, arresting a suspected criminal with or without a warrant upon receiving such information and arraigning such suspected criminals before a court of law to stand trial based upon the information and evidence gathered. 2. This court was called upon to find that the police duly complied with their statutory mandate and adhered to their objects and functions laid out under **Article 244 of the Constitution.** Reliance was placed on the case of **Law Society of Kenya -vs- A.G & Another; National Commission for Human Rights & Another (Interested Parties) (2020) eKLR** where the court (Makau J) stated as follows:- **“It is my view that where a constitution has reposed specific functions in an institution or organs of state, the Court must give those organs sufficient time or leeway to discharge their constitutional mandate and only accept an invitation to intervene when those organs or bodies have demonstrably been shown to have acted contrary to their constitutional mandate or in contravention of the** **constitution.”** 1. As to whether the Petitioners are entitled to the reliefs sought, it was submitted, with regard to prayer A, that the Petitioners have been unable to demonstrate a violation of rights by the 2nd Respondent. 1. With regard to prayers B and C, it was submitted that the actions of the Respondents i.e., the arrest of the 1st Petitioner by the 2nd Respondent and the resulting charge and prosecution by the 1st Respondent have all been lawfully done in the due exercise and discharge of their constitutional and statutory mandate. That, the orders of prohibition and *certiorari* cannot be issued by this Court as they would have an effect of curtailing the due execution of the Respondents’ mandate. 2. It was submitted that the 1st Respondent derives their prosecutorial mandate from **Article 157(6)(a) of the Constitution of Kenya** and that the **Article** has been operationalized by **Section 5(b)(i) of the Office of the Director of Public Prosecutions Act, CAP 6B**. That, the said provisions grant the 1st Respondent unlimited powers to initiate criminal proceedings against any person which essentially includes the 1st Petitioner. 3. That, the 1st Respondent initiates criminal proceedings on the basis of two tests, the evidentiary test and the public interest test pursuant to paragraph 4(B)(1) of the **National Prosecution Policy**. That, in this case, it follows that the two tests met the requisite threshold and can therefore sustain the charges preferred and subsequently provide a realistic prospect of conviction. That, the Petitioners have not tendered an iota of evidence necessary to demonstrate that the 1st Respondent has acted in excess of their powers and in bad faith against the 1st Petitioner as to warrant issuance of the judicial review orders sought. Reliance was placed *inter alia* on the case of **Douglas Maina Mwangi -vs- Director of Public Prosecutions & Another [2013] eKLR** where the court stated; **“The office of the Director of Public Prosecution under Article 157 of the Constitution is an independent office under the Constitution like its predecessor office, the office of the Attorney General under section 26 of the former Constitution. When dealing with the decision as to whether or not to prosecute, the office exercises independent judgment and this court cannot interfere unless it is shown that the exercise is contrary to the Constitution, in bad faith or amounts to an abuse of process. This has been the holding of this court in several decided cases including Elory Kranveld v Attorney General Nairobi Petition No. 153 of 2012 (Unreported), Peter Maina Gacheru v The Director of Public Prosecutions, Nairobi Petition No 161 of 2012, Hon. Chirau Ali Mwakwere v Robert Mabera and Others, Nairobi, Nairobi Petition No. 6 of 2012 (Unreported), William S. K. Ruto and Another v Attorney General and Another Nairobi HCCC No. 1192 of 2004 (Unreported)[2010] e KLR, Jacob Juma v The Director of Public Prosecutions and Other Nairobi HC JR Petition No. 652 of 2009 (Unreported), Bryan Yongo v Attorney General Nairobi HCCC No. 61 an 196 of 2006 (Unreported) and John Swaka v Director of Public Prosecutions and 2 others, Nairobi Petition No 318 of 2011 (Unreported)”** 1. It was submitted that the prohibition order sought is untenable in the circumstances since the 1st Petitioner has already been charged in court and the proceedings are still ongoing. Reliance was placed on the case **of Kenya National Examination Council -vs- Republic Ex Parte Geoffrey Gathenji Njoroge & 9 others [1997] eKLR**, where the court stated; **“What does an ORDER OF PROHIBITION do and when will it issue? It 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 for 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 – See HALSBURY’S LAW OF ENGLAND, 4th Edition, Vol.1 at pg.37 paragraph 128… The point we are making is that an order of prohibition is powerless against a decision which has already been made before such an order is issued. Such an order can only prevent the making of a decision. That, in our understanding, is the efficacy and scope of an order of prohibition.”** 1. Further reliance was placed on the case of **Saisi & 7 Others -vs- Director of Public Prosecutions & 2 Others (Petition 39 & 40 of 2019 (Consolidated) [2023] KESC 6 (KLR) (Civ)** where the court stated; **“We are emphatic that the High Court, whether sitting as a constitutional court or a judicial review, may only interfere where it is shown that under article 157(11) of the Constitution, criminal proceedings have been instituted for reasons other than enforcement of criminal law or otherwise abuse of the court process. We reproduce the words of this court in Hussein Khalid and 16 others v Attorney General & 2 others [supra] as follows; “[105] It is not in dispute that every statutory definition of an offence comprises ingredients or elements of the offence proof of which against the accused leads to conviction for the offence. Inevitably, proof or otherwise of elements of an offence is a question of fact and that largely depends on the evidence first adduced by the prosecution and where the accused is placed on his defence, the accused evidence in rebuttal. This in our view is an issue best left to the trial court as it will not only have the benefit of the evidence adduced but will weigh it against the elements of the offence in issue. It is not automatic that once a person is charged with an offence (s) he must be convicted. Every trial is specific to the parties involved and a blanket condemnation of the statutory provisions is in our view overreaching. The presumption of innocence remains paramount.”** 1. With regard to prayer D, it was submitted that since the alleged violation of rights and fundamental freedoms has not been proven, the award of general and exemplary damages ought not to be granted. It was contended that exemplary damages are sought not to compensate the victim for the impugned action but to punish and serve as an example to the perpetrator and act as a deterrent for any such future conduct. Reliance was placed on the case of **Gitobu Imanyara & 2 Others -vs- Attorney General [2016] eKLR** where the Court of Appeal stated; **“Having restated that the assessment of damages is a discretionary relief, we cannot also fault the learned Judge for failure to award exemplary and aggravated damages on the grounds of heavy burden to the innocent tax payer and secondly due to the improved political environment and the positive steps taken by the government in dealing with human right violations. We find support in the recent decision of the Supreme Court of Canada in Vancouver (City) v. Ward, 2010 SCC 27, [2010] 2 S.C.R. 28 where the Court while considering a colossal award for a Constitutional violation and Sec 24 of the Canadian Charter, held that: “… In the end, s. 24(1) damages must be fair to both the claimant and the state. In considering what is fair to both, a court may take into account the public interest in good governance, the danger of deterring governments from undertaking beneficial new policies and programs, and the need to avoid diverting large sums of funds from public programs to private interests…Similarly, in the case of Dandy (supra) the court held that:“...The test was not what would alleviate the hurt which plaintiff contended for but what was appropriate relief required to protect the rights that had been infringed. Public policy considerations also played a significant role. It was not only the plaintiff's interest, but the interests of society as a whole that ought as far as possible to be served when considering an appropriate remedy.” In the end, we have considered the comparative jurisprudence in this area and the recent decisions of this Court and find no justification to interfere with the learned Judge's exercise of discretion in assessing the damages awarded to the appellants based on the evidence placed before him. We would however point out that even though the learned Judge did not distinguish between public law remedies and private law remedies, he however proceeded correctly and applied the general principles for award of monetary damages in arriving at his decision.”** 1. Further reliance was placed on **High Court Petition 94 of 2014; Kenneth Stanley Njindo Matiba -vs-Honourable Attorney**, where the court stated; **“The Petitioner also seeks exemplary and aggravated damages for the violation of his rights by the Respondent. However, the High Court has been reluctant in awarding exemplary damages for reasons that they are not awardable in changed political circumstances. In Benedict Munene Kariuki and 14 Others v the Attorney General High Court Petition No. 722 of 2009 it was for example determined that no exemplary damages should be awarded in addition to general damages in respect of violation of constitutional rights. Similarly, in Standard Newspapers Limited & another v Attorney General & 4 others Petition no. 113 of 2006 [2013] eKLR Mumbi Ngugi J held: “It is worth noting that exemplary damages are sought not to compensate the victim for the impugned action but to punish and serve as an example to the perpetrator and act as a deterrent for any such future conduct. The High Court has held that exemplary and aggravated damages are inappropriate remedies where unconstitutional action is the subject of challenge.” In the circumstances, I do not find it necessary to award exemplary and aggravated damages.”** 1. Consequently, it was submitted that the prayer for exemplary damages fails on account of failure to meet the required standard of the award. 2. Having looked at the Petition, Responses and the Rival Submissions, it is my considered view that the following issues arise for determination; 1. **Whether the charges against the 1st Petitioner are based on his work as an Advocate of the High Court of Kenya.** 2. **Whether the 1stPetitioner’s Constitutional Rights and Freedoms, as detailed in the Petition, have been infringed and/or violated.** 3. **Whether the Petitioners are entitled to the prayers sought.** 4. **Which orders should the Court issue?** **Analysis** **Whether the charges against the 1st Petitioner are based on his work as an Advocate of the High Court of Kenya.** 1. It is not in dispute that the 1st Petitioner is an Advocate of the High Court of Kenya practicing as such in the name and style of J. Mbugua Mburu & Associates Advocates. This is evidenced by the Practicing Certificate for the year 2023 and the Certificate of Registration (EX. 1). It is also not in dispute that he was charged in Criminal Case No. E134 of 2024 at the Kilungu Law Courts and that the case is still pending in court. 2. The charge sheet shows that he was charged, in Count one, with the offence of **Making a Document without Authority Contrary to section 357(a) of the Penal Code**. 3. The particulars of the offence are that on the 7th day of October 2021 at unknown place in the Republic of Kenya, jointly with others not before court, with intent to deceive or defraud, without lawful authority or excuse, the 1st Petitioner made a document namely consent to transfer land dated 7th October 2021 purporting to be genuine consent of transfer given by the late Manthi Ndua Mwove. 4. In Count two, he was charged with the offence of **Uttering a False Document Contrary to Section 353 of the Penal Code**. 5. The particulars of the offence are that on 26th day of October 2021 at Machakos Chief Magistrate’s Court within Machakos County, the 1st Petitioner knowingly and fraudulently uttered a forged document namely consent of transfer of land to Machakos Civil Court purporting it to be genuine consent of transfer for Konza Agricultural plot No. 494 of Barazani Self-Help Group issued by the Magistrate A.G Kibiru who was the trial Magistrate in Machakos Civil Suit No. 51 of 2015. 6. In both counts, it is evident that the common document is the consent dated 07/10/2021 and according to the evidence adduced by the Petitioner, he was the Legal Representative for the 2nd Petitioner (client) in Machakos CMCC 51 of 2015: Manthi Ndua Mwove -vs- Gabriel Muema where an eviction order was being sought against his client. The consent was signed by the 1st Petitioner’s firm for the Defendant and the firm of J.K Muchae & Co. Advocates for the Plaintiff. The consent was subsequently adopted as an order of the court on 27/10/2021 by Hon. A.G Kibiru (CM). 7. According to the Replying Affidavit sworn by P.C Solomon Kirwa (I.O), the 2nd Petitioner herein occupied the land belonging to Manthi Ndua Mwove (deceased) thereby necessitating the eviction suit but the Plaintiff died before conclusion of the case. That, the case was subsequently dismissed for want of prosecution on 28/11/2018 and reinstated on 12/05/2021 and thereafter, the 1st Petitioner appeared severally for either party and on various occasions instructed other counsel to hold brief for Mr. Sila (Advocate for deceased Plaintiff) who was all along not aware that the matter had been reinstated. 8. That, the 1st Petitioner filed an application for substitution of the deceased Plaintiff with his family members whom he alleged were the Legal Administrators of the estate of the deceased Plaintiff. That, to support the said application, the 1st Petitioner filed a fake Certificate of Grant which named four Administrators of the deceased’s estate and on 07/10/2021, the 1st Petitioner prepared and filed a consent alleging the same to have been executed by himself on behalf of the 2nd Petitioner on one part and Advocate Muchae (deceased) on the other part on behalf of the Plaintiff. 9. The I.O is therefore accusing the 1st Petitioner of being the mastermind of the ‘fraud’ that led to the adoption of the consent. On the other hand, the 1st Petitioner deposed that he received instructions to revive the suit and seek to amend the defence and raise a Counter Claim. That, upon learning about the demise of the Plaintiff, he enquired the same from his client who promised to get in touch with the family of the Plaintiff and give feedback. That, during the next client meeting, his client came with Certificate of Confirmation for Grant in CM Succ Cause 70/2018 (Makueni) Re; Estate of Manthi Ndua Mwove *alias* Manthi Ndua dated 20/02/2020. 10. The I.O, PC Kirwa deposed that he had availed the proceedings in the Machakos Civil Suit but the same are not annexed to his affidavit. He did not avail evidence to show that it was the 1st Petitioner who instructed other counsel to hold brief for Mr. Sila Advocate. He did not avail evidence to show that the deceased Plaintiff was not substituted with his family members as Administrators. He also did not tender any evidence to show that the Certificate of Confirmation of Grant is fake and that the Administrators in Succession Case Number 70 of 2018 were not children to the deceased Plaintiff. There was no proof that those Administrators do or don’t exist. Why didn’t they swear any affidavit denying involvement in Succession Case Number 70 of 2018? 11. Why haven’t the children of the deceased plaintiff in Civil Suit Number 51 of 2015 not challenged the validity of the impugned consent order nor the Confirmed Grant in Succession Case Number 70 of 2018? 12. In short, prosecution has not demonstrated that the 1st Petitioner is the mastermind of the ‘fraud’ that led to the adoption of the consent. It would have been helpful for the I.O to get a sworn affidavit from the family of the deceased Plaintiff confirming that they are unaware of the substitution, that they have never obtained Letters of Administration for his estate and that the people who substituted him are unknown to them. 13. Additionally, it is not in dispute that the said consent has never been set aside or appealed against hence it is still a valid court order. There is no proof that the consent order in question was unilaterally obtained by the 1st Petitioner. The Complainant who reported the criminal acts in the two criminal cases one Joshua Mutiso did not swear any affidavit nor testify to show his interest in the prosecution of the Petitioners and the role they played in securing the impugned consent order. Who is Joshua in this case? How come none of the family members of the estate of the decease Plaintiff one Manthi Ndua Mwove never complained nor testified to prove that they never participated in any proceedings involving their late father? 14. In **Samson John Nderitu v The Attorney General [2010] eKLR, Nambuye J** (as she then was) held as follows: - **“It is trite and this court, has judicial notice of the fact that before an accused person is taken to court, and arraigned in court for criminal prosecution, the prosecuting authority namely the police or whatever unit, whose functions fall under the office of the Defendant, usually carry out investigations, record statements from potential witnesses, analyze the facts to determine if the facts disclose an offence before arraigning such a person in a court of law.”** 1. The DPP cannot hide behind his constitutional autonomy under **Article 157** to trample upon other people’s rights. Equally the Inspector General must act diligently in conducting investigation before rushing to court under the guise of constitutional independence under **Article 245** **of the Constitution**. Where the two organs of State fail to exercise their mandate appropriately, judiciously and professionally, courts will not hesitate to intervene. 2. In the absence of evidence disclosing fraud on the part of the 1st Petitioner or knowledge of fraud committed by his client, the irresistible conclusion is that the 1st Petitioner prepared and filed the consent in his capacity as the Legal Representative of the 2nd Petitioner. That being the case, the 1st Petitioner is covered by the Advocate-Client privilege against forceful disclosure of information which he obtained during the subsistence of the relationship. **Section 134 of the Evidence Act, Cap 80 Laws of Kenya provides that;** **“No advocate shall at any time be permitted, unless with client’s express consent, to disclose any communication made to him in the course and for the purpose of his employment as such advocate, by or on behalf of his client or to state the contents or conditions of any document with which he has been acquainted in the course and for the purpose of his professional employment, or to disclose any advice given by him to his client in the course and for the purpose of such employment.”** 1. The above position is buttressed by the provisions of **Halsbury’s Laws of England 3rd Edition Vol. 3 para 67** where the learned writers observe; **“67. Duty not to disclose or misuse information: The employment of counsel places him in a confidential position, and imposes upon him a duty not to communicate to any third person the information which has been confided to him as counsel to his client’s detriment(p) this duty continues after the relation of counsel and client has ceased.”** 1. In the persuasive case of **Law Society of Kenya -vs- Martin Day & 3 Others [2015] KEHC 1336 (KLR),** the Court (Aburili J) stated; **“56. A client/advocate relationship therefore arises when a client retains an advocate to offer legal services specifically or generally.** **57. The advocate/client privilege is one of the incidents of the retainer between the advocate and client and binds the advocate not to disclose information reposed to him without the client’s consent to other persons. There is some level of confidentiality and where an advocate is compelled to disclose such information, and then the court will be forcing the advocate to betray the confidentiality he owes to his clients and thereby violate their professional and ethical duties to a client.** **58. Parties enjoy the freedom of instructing an advocate of their own choice to achieve fair hearing or fair trial and they should have the confidence that the information disclosed to their advocates shall not be divulged to third parties to the client’s detriment.** **59. The only exception to the above rule protecting advocate client privileged communication is the communication made in furtherance of an illegal purpose or any fact observed by an advocate in the course of his employment showing that a crime or fraud has been committed.”** **Whether the 1st Petitioner’s Constitutional Rights and Freedoms, as detailed in the Petition, have been infringed and/or violated.** 1. The Respondents have pleaded constitutional mandate in the arrest and arraignment of the 1st Petitioner before the Kilungu Law Courts. Having found that the I.O has not placed any evidence before this court to demonstrate ‘probable cause’ for prosecution of the 1st Petitioner, it is my view that various constitutional rights and freedoms have been infringed and that the prosecution had not demonstrated any probable or reasonable cause to charge the 1st petitioner. 2. The legal text **Salmond on the Law of Torts** defines reasonable and probable cause to mean: - **“.... a genuine belief, based on reasonable grounds, that the proceedings are justified.”** 1. Further, the English Case of **Hicks –vs- Faulkner (1878) 8 QBD 167** defined reasonable and probable cause as follows; **“Reasonable and probable cause is an honest belief in the guilt of the accused based upon a full conviction founded upon reasonable grounds of the existence of a state of circumstances, which assuming them to be true, would reasonably lead any ordinary prudent and cautious man placed in the position of the accused, to the conclusion that the person charged was probably guilty of the crime imputed…The prosecutor must himself honestly believe in the case which he is making…”** 1. It is not in dispute that the 1st Petitioner was arraigned in Kilungu Law Courts within Makueni County yet the impugned actions are said to arise in Machakos County. **Section 71** of the **Criminal Procedure Code (CPC)** provides; **“Subject to the provisions of Section 69, and to the powers of transfer conferred by section 79 and 81, every offence shall ordinarily be tried by a court within the local limits of whose jurisdiction it was committed, or within the local limits of whose jurisdiction the accused was apprehended, or is in custody on a charge for the offence, or has appeared in answer to a summons lawfully issued charging the offence.”** 1. **Section 72** of the CPC provides; **“When a person is accused of the commission of an offence by reason of anything which has been done or of any consequence which has ensued, the offence may be tried by a court within the local limits of whose jurisdiction the thing has been done or the consequence has ensued.”** 1. By dint of the above provisions, the 1st Petitioner should have been arraigned before the Magistrate’s Court in Machakos instead of Kilungu Law Courts. The Respondents did not give a justification for the departure from the well-established legal provisions hence no explanation for the differential treatment of the 1st Petitioner. 1. The 1st Petitioner deposed that he ordinarily resides and works in Machakos hence he would suffer hardship and additional expenses by being required to attend Kilungu Court. Consequently, it is my considered view that the unequal application of the law is a violation of **Article 27 (1) of the Constitution** which provides that; **‘Every person is equal before the law and has the right to equal protection and equal benefit of the law.**’ 2. The evidence shows that the 1st Petitioner was detained but later released after paying a cash bail of Kshs. 80,000/=. Having demonstrated that the I.O did not have a probable cause to believe that the proceedings against the 1st Petitioner were justified, his detention amounted to a violation of **Article 29(a)** which provides that; **‘Every person has the right to freedom and security of the person, which includes the right not to be deprived of freedom arbitrarily or without a just cause.’** 3. There is no evidence that the 1st Petitioner’s right to dignity was violated as there is no evidence that he was manhandled during arrest or arraignment in court. The evidence shows that he was detained after presenting himself to court pursuant to Summons. Further, his evidence is that he was accompanied by his Advocate Ms. Mutindi hence the allegation of being denied communication with his Advocate has not been established. 4. The 1st Petitioner averred that **Article 48** was violated by seeking for an imposition of an unreasonably high amount of cash bail and punitive bond terms. It is trite that imposition of bail/bond terms is a mandate of the court hence regardless of submissions by the DPP, the final decision rests with the court. it is therefore my view that the Respondents cannot be crucified for a decision made by the trial court. 5. The 1st Petitioner also averred that **Article 50** was violated as the Respondents are seeking to charge a potential defense witness and steal a match in Criminal Case 383 of 2023 at Kilungu Law Courts. According to the materials before Court, the 2nd Petitioner’s defence to the charge of Forcible Detainer is that he is in occupation of the land pursuant to the consent entered in the Machakos Civil Suit. The consent was prepared and filed by his Advocate, the 1st Petitioner, hence the 1st Petitioner is a likely defence witness for the 2nd Petitioner. Be that as it may, the 2nd Petitioner did not file any affidavit or testify to demonstrate how his rights were violated. Consequently, it is my view that the 1st Petitioner has not established how being a potential witness for the 2nd Petitioner amounts to infringement of his (1st Petitioner) right to fair trial under **Article 50**. 6. From the foregoing, it is my considered view that the 1st Petitioner has established violation of **Rights in Article 27(1) and 29(a)** with reasonable degree of precision as espoused in the Anarita Karimi Njiru case(supra). **Whether the Petitioners are entitled to the prayers sought.** 1. From the foregoing, the 1st Petitioner has established that he is entitled to the order of *certiorari* to bring into this court and quash Criminal Case No. E134 of 2024 at Kilungu Law Courts against him. Having established that there was no *prima facie* evidence to warrant arrest and arraignment of the 1st Petitioner in Court, the order of *certiorari* is inevitable. 2. The prayer for prohibition has been overtaken by events as the 1st Petitioner has already been charged and the case is pending before the Kilungu Court. 3. The 1st Petitioner also prayed for general and exemplary damages. However, in the pleadings, no specific amount was prayed for nor proved. Counsel never submitted for any specific amount. According to **Article 23(e) of the Constitution**, a Court may grant appropriate relief including an order for compensation. In the case of **Munyi v Embu Water and Sanitation Company Ltd & Another (Civil Appeal E056 of 2025) [2026] KEHC 5730 (KLR) (29 April 2026) (Judgment)** Mwongo J, upheld a Magistrate’s Court award of Kshs. 200,000 as General Damages for malicious prosecution. 4. Considering that the case has not gone to full trial, I will find a global award of Kshs. 400,000/= as reasonable compensation for violation of the 1st Petitioner’s constitutional rights. As regards to the 2nd Petitioner there was no prayer made in his favour nor did he swear any affidavit in support of the petition. In fact, his name was merely included as a party without any participation hence no relief can issue in his favour. 5. As for exemplary damages, I am of the view that the same should be declined in public interest. **Conclusion** 1. In view of the above finding, it is my holding that the Petition herein in respect of the 1st Petitioner has merit hence allowed with orders that; 2. **A declaration be and is hereby made that the arraignment, charging and prosecution of the 1st Petitioner in Criminal Case No.134 of 2024 at Kilungu Law Courts as an Advocate for performing professional duties in Civil Case No. 51 of 2015 at Machakos Law Courts is unconstitutional.** 3. **An order of *certiorari* be and is hereby issued quashing Criminal Case Number 134 of 2024 at Kilungu Law Courts against the 1st Petitioner who henceforth shall be set free of the pending criminal charges in that case unless otherwise lawfully held.** 4. **General damages as compensation for violation of the 1st Petitioner’s constitutional rights is hereby awarded at a global sum of Kshs. 400,000/= against the Respondents jointly and severally.** 5. **Costs are awarded to the 1st Petitioner.** Dated, signed and delivered this **7th** day of **August 2026** ……….............……... J. N. ONYIEGO **JUDGE**