https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8287

Middle East Africa Auto Spares Ltd & 2 others v Police & 5 others (Petition E306 of 2023) [2026] KEHC 8287 (KLR) (Constitutional and Human Rights) (11 June 2026) (Judgment) Neutral citation: [2026] KEHC 8287 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Law Courts) Constitutional and Human Rights Petition E306 of 2023 PM Nyaundi, J June 11, 2026 Between Middle East Africa Auto Spares Ltd 1st Petitioner David Njonjo Waiharo 2nd Petitioner Christopher Kimamo Muchiri 3rd Petitioner and Inspector General Of Police 1st Respondent Chief Magistrate’s Court, Makadara 2nd Respondent The Hon. Attorney General 3rd Respondent Director of Public Prosecution 4th Respondent Francis Mungai Njoroge 5th Respondent and Humphrey Gitau Njoroge Interested Party Judgment Introduction 1.By Amended Petition dated 24th March 2025, the Petitioners seek declaratory reliefs, prerogative orders of certiorari and prohibition, and damages for alleged violations of Articles 27, 28, 40, 47 and 50 of the Constitution. The specific reliefs sought are-a.A declaration be issued to declare that the institution, prosecution and maintenance of the criminal proceedings against the Petitioners in Makadara Magistrate’s Court Criminal Case No. E7952 of 2023 as consolidated with case No. E4902 of 2023 are in violation of the Petitioners’ rights and fundamental freedoms under Article 40, 47 and 50 of the Constitution of Kenya, 2010.b.A declaration be issued to declare that the prosecution and maintenance of the criminal proceedings against the Petitioners in Makadara Magistrate’s Court Criminal Case No. E7952 of 2023 as consolidated with case No. E4902 of 2023 is an abuse of the Court process.c.That the Honourable Court be pleased to issue an order of certiorari to quash criminal proceedings in Makadara Magistrate’s Court Criminal Case No. E7952 of 2023 as consolidated with case No. E4902 of 2023 in order to secure the Petitioners’ rights under Articles 40, 47 and 50 of the Constitution of Kenya, 2010.d.That the Honourable Court be pleased to issue an order of prohibition to prohibit the prosecution of the Petitioners in Makadara Magistrate’s Court Criminal Case No. E7952 of 2023, as consolidated with case No. E4902 of 2023 or in any other case in relation to the same set of facts.e.That a declaration be issued to declare that the decision of the 1st Respondent to prosecute and maintain criminal proceedings against the Petitioners in cite (sic) violates the fundamental principles set out in Section 4 of the Office of the Director of Public Prosecution Act, Cap 6B read with Article 157 (11) of the Constitution.f.That a declaration be issued to declare that under Articles 27 and 50 of the Constitution, the Petitiners have a legitimate expectation which has been breached by the Respondents that exculpatory evidence in possession of the prosecution shall be considered and applied in determining whether to prosecute or maintain criminal proceedings instituted against them in Makadara Magistrate’s Court Criminal Case No. E7952 of 2023, as consolidated with case No. E4902 of 2023.g.That a declaration be issued to declare that the 1st Respondent has violated Article 157 (10) of the Constitution in submitting to the influence of the Complaint -the 5th Respondent herein- to institute criminal proceedings against them in Makadara Magistrate’s Court Criminal Case No. E7952 of 2023, as consolidated with case No. E4902 of 2023.h.That an order of certiorari be issued to quash the decisions of the 1st respondent to prosecute the Petitioners and maintain criminal charges against them in Makadara Magistrate’s Court Criminal Case No. E7952 of 2023, as consolidated with case No. E4902 of 2023 contained in his letters dated 26th April 2023 and 12th March 2024i.That a declaration be issued that the Petitioners are entitled to damages as redress in respect of each of the above rights that have been violated by the Respondents herein.j.That the 5th Respondent be condemned to pay punitive damages to the Petitiners for lodging a malicious complaint against them.k.That an order consequential to the above declarations, quantifying the amount of damages in respect of each and every declaration, and orders be granted. Factual Background 2.The Petitioners face charges relating to alleged forgery and fraudulent extension of a lease over LR No. 209/8675. They deny the allegations and assert that the lease extension was validly executed. Further that the dispute is essentially civil in nature in nature. 3.They further assert that the Land Registrar has since recanted his earlier position, that following the most recent charges the DCI has pointed out loopholes in the prosecution case, sought guidance from the ODPP on whether to proceed, and that the ODPP nonetheless directed continuation of the prosecution. The Petitioners take issue with this decision by the ODPP and contend that the ODPP is acting under the influence of the 5th Respondent and has therefore acted in contravention of Article 157 (11) of the Constitution. 4.The Petitioners further assert that there is no change in circumstances to justify the shift in the ODPP’s earlier position in 2016 that the matter was civil in nature, subsequent to the withdrawal of Criminal Case No. 3299 of 2021 under Section 87(a) of the Criminal Procedure Code. 5.The 5th Respondent maintains that the lease extension was fraudulent. The Interested Party disputes this and asserts that the criminal process is being weaponised to settle intra-family disputes. 6.The Petition was canvassed via written submissions. Summary Of The Petitioners’ Submissions. 7.The Submissions are dated 22nd September 2025, the issues for determination are framed as –1.Whether the 1st respondent ( Director of Public Prosecution) exercised prosecutorial powers in a manner consistent with Article 157 (11) of the Constitution.2.Whether the 1st Respondent submitted to the influence and control of the 5th Respondent in institution Makadara Chief Magistrates Court Criminal ase No. E7952 of 2023 as consolidated woth Case No. E4902/ 2023 aganst the Petitoners contrary to Article 157 (10) of the Constitution of Kenya.3.Whether the institution and continuation of the Makadara Chief Magistrates Court Criminal Case No. E7952 of 2023 as consolidated with Case No. E4902/ 2023 against the Petitioners in the absence of sufficient evidentiary basis amounts to a violation of the Petitioner’s constitutional rights under Articles 27, 28, 40, 47 and 50 of the Constitution.4.Whether the institution and continuation of the Makadara Chief Magistrates Court Criminal Case No. E7952 of 2023 as consolidated with Case No. E4902/ 2023 against the Petitioners in the absence of a sufficient evidentiary basis amounts to the abuse of the Court process.5.Whether the orders sought should be granted. 8.On whether the 1st respondent exercised his prosecutorial power in a manner consistent with Article 157(11), it is submitted that he did not and reference made to the decision in Republic v Director of Public Prosecution & Ethics and Anti Corruption Commission Ex parte Chamnanlal Vrajlal Kamani, Deepak Chamnalal Kamani & Rasmi Chamanlal Kamani (Judicial Review Application 78 of 2015)[2015] KEHC 7666( KLR) (Judicial Review) (18th September 2015) 9.On the 2nd issue, it is submitted that it is evident that the 1st respondent succumbed to pressure from the 5th Respondent and reference made to the decisions in Diamond Hasham Lalji & Another v Attorney General and 4 Others [2018] eKLR and Hassan Ali Joho v Inspector- General of Police & 3 Others [2017] KEHC 3055 (KLR) 10.The Petitioners submit that the institution and continuation of Makadara Chief Magistrates Court Criminal Case No. E7952 of 2023 as consolidated with Case No. E4902/ 2023 against them amounts to a violation of the Petitioner’s constitutional rights under Articles 27, 28, 40, 47 and 50 of the Constitution. It is submitted that under Article 27 (1) they are guaranteed a right to equal protection and equal benefit of the law. The Petitioners fault the 1st Respondents' action of arriving at a different conclusion on the same facts. 11.Their rights under Article 28 are said to be violated on account of the stigma attached to being prosecuted as a fraudster, thereby occasioning a violation of their right to human dignity. 12.Their right to a fair administrative action as guaranteed under Article 47 of the Constitution is said to have been violated as the 1st respondent has not justified the reason for bringing the matter back to life, notwithstanding the earlier decision of October 2016. 13.His right to a fair hearing is curtailed by the erroneous exercise of discretion by the ODPP to prosecute even in the absence of a factual or evidential foundation to sustain the charge. 14.It is further submitted that the continued criminal proceedings against the 2nd and 3rd Petitioner amount to abuse of Court process and reference made to Republic v Director of Public Prosecution & Ethics and Anti-Corruption Commission Ex parte Chamnlala Vrajilal Kamani, Deepak Chmanlal Kamani & Rashmi Chamanlal Kamani ( Judicial Review Application 78 of 2015)[2015] KEHC 766 (KLR) and asserted that the cases have been invoked in bad faith.evidence. Summary Of Submissions Of 1St And 2Nd Respondents 15.In Submissions dated 27th February 2026 the 1st and Respondent are categorical that they acted within their statutory and constitutuional mandate. It is further submitted that the Petition has not met the legal threshold for this Court to exercise its supervisory jurisdiction. Reliance is placed on the decision in the Ugandan decision in Pastoli vs Kabale District Local Government Canal & Others [2008] 2 EA 300. Summary Of The Submissions Of The 2Nd, 3Rd And 4Th Respondents 16.The Submissions are dated 25th February 2026, and it is contended that the Court should refrain from interfering with the Constitutional and statutory mandate of the Office of the Director of Public Prosecutions. The Respondents urge that the Petition has not met the legal threshold and reference is made to the decisions in Law Society of Kenya & Another v Director of Criminal Investigation & 2 Others [2025] KEHC 12504 (KLR); Republic v Grace Wangari Bunyi ( Sued as the Administrator of the Estate of the Late Obadiah Kuria Bunyi) & 7 Others Ex Parte Moses Kiruti & 28 Others [2018] eKLR Summary Of 5Th Respondent’s Submissions 17.The Submissions are dated 2nd March 2026 and the issues for determination are framed as-i.Whether the petition herewith is res judicata by dint of the judgment ofA. K. Ndungu in JR Misc E173 of 2021 dated 16th May 2023ii.Whether the Petition is sub judice in light of the applications in Civil Appeal 197 of 2023 and Appeal thereof before the Court of Appeal?iii.Whether the Petitioners have met the threshold to allow this Honourable Court to interfere with the decision by the Office of the Director of Public Prosecutions to charge the Petitionersiv.In the circumstances, what orders should be issued? 18.It is submitted that the substratum of the instant Petition and the judicial review application is the same, and a determination was made in the judicial review. Further, it is submitted that, in light of the pending appeal, this Petition contravenes the sub judice principle. Reference is made to the decision in Kenya National Commission on Human Rights v Attorney General; Independent Electoral & Boundaries Commission & 16 Others (Interested Parties) [2020] eKLR. 19.It is submitted that the Petition has not met the legal threshold that would allow this Court to interfere with the exercise of discretion by the Office of the Director of Public Prosecutions. Reference is made to the decisions in Meixner & Anor v Another [2005] eKLR; Philomena Mbete Mwilu v Director of Public Prosecutions & 3 Others; Stanley Muluvi Kilima ( Interested Party); International Commission of Jurists Kenya Chapter ( Amicus Curiae) [2019] Eklr; Decision of the Supreme Court of India in R.P. Kapur v State of Punjab AIR 1960 SC 866; Republic v Commissioner of Co-operatives Ex parte Kirinyaga Tea Growers Cooperative Savings & Credit Society Ltd [1999] 1 EA 245 . 20.The 5th Respondent further submits that the Petitioner is guilty of abuse of court process and makes reference to the decision in Maura Muigana vs Stellan Consult Limited & 2 others, which cited with approval the decision in Muchanga Investments Limited vs Safaris Unlimited ( Africa) Ltd & 2 Others [2009] KLR 229 Summary Of The Interested Party’s Submissions 21.The Submissions are dated 9th October 2023. It is submitted that the decision by the Office of the Director of Public Prosecutions to charge the Petitioners was in breach of his constitutional mandate under Articles 157 (10) and (11) of the Constitution of Kenya 2010. Reference is made to the decision in Diamond Hasham Lalji & Another v Attorney General & 4 Others [2018] eKLR and Kuria & 3 Others v Attorney General (2002) 2 KLR 69 Analysis And Determination 22.Having considered the pleadings and submissions filed herein, I frame the issues for determination as follows:1.Whether the Petition is barred by the doctrines of res judicata or sub judice?2.Whether the Office of the Director of Public Prosecutions acted in contravention of Article 157(11) of the Constitution in directing the prosecution of the PetitionersMakadara Magistrate’s Court Criminal Case No. E7952 of 2023, as consolidated with case No. E4902 of 20233.Whether the institution and continuation of the criminal proceedings in Makadara Magistrate’s Court Criminal Case No. E7952 of 2023 as consolidated with case No. E4902 of 2023 violates the Petitioner’s rights?4.costs Whether the Petition is barred by the doctrines of res judicata or sub judice? 23.On res judicata, Section 7 of the Civil Procedure Act states as follows-No court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such court.Explanation. — (1) The expression "former suit" means a suit which has been decided before the suit in question whether or not it was instituted before it.Explanation. — (2) For the purposes of this section, the competence of a court shall be determined irrespective of any provision as to right of appeal from the decision of that court.Explanation. — (3) The matter above referred to must in the former suit have been alleged by one party and either denied or admitted, expressly or impliedly, by the other.Explanation. — (4) Any matter which might and ought to have been made ground of defence or attack in such former suit shall be deemed to have been a matter directly and substantially in issue in such suit.Explanation. — (5) Any relief claimed in a suit, which is not expressly granted by the decree shall, for the purposes of this section, be deemed to have been refused.Explanation. — (6) Where persons litigate bona fide in respect of a public right or of a private right claimed in common for themselves and others, all persons interested in such right shall, for the purposes of this section, be deemed to claim under the persons so litigating. 24.The Supreme Court articulated the conjunctive elements that must be satisfied before the doctrine in invoked in John Florence Maritime Services Limited & Anor v Cabinet Secretary, Transport & 3 Others Petition 17 of 2015, as-a)There is a former Judgment or order which was final;b)The Judgment or order was on merit;c)The Judgment or order was rendered by a court having jurisdiction over the subject matter and the parties; andd)There must be between the first and the second action identical parties, subject matter and cause of action. 25.The principle of establishing a definitive end to litigation intends to safeguard parties from prolonged legal disputes and promote the efficient use of the judiciary's limited resources. Its well-defined scope guarantees that genuine cases are fairly judged based on their merits. When applied to subsequent cases, the test must remain within its established boundaries, or the objection becomes invalid. 26.It is submitted that the issues discussed here are the same as those in Judicial Review Division Misc Application Number E173 of 2021, which was heard and dismissed on 16th March 2023. However, that judgment provides the answer as the Court noted that the issue was not yet ripe and therefore declined to grant the requested orders. 27.In addition to the Judicial review orders, in this Petion the Petitioner also seeks declaratory orders based on the alleged violation of the Petitioner's rights. This is almost identical to the scenario obtaining in John Florence Maritime Services Limited & Anor v Cabinet Secretary, Transport & 3 Others Petition 17 of 2015, in that case the Supreme Court took the occasion to distinguish between a Constitutional Petition and a Judicial review application and stated thus-[107]The Court when determining a constitutional petition is empowered to look beyond the process and not only examine but delve into the merits of a matter or a decision. The essence of merit review is the power to substitute a decision which the Court can do when determining a constitutional petition. Further the Court is further empowered to grant not just judicial review orders but any other relief is deems fit to remedy any denial, violation or infringement of, or threat to, a right or fundamental freedom in the Bill of Rights. This Court in its decision in Mitu-Bell Welfare Society v. Kenya Airports Authority & 2 others; Initiative for Strategic Litigation in Africa (Amicus Curiae) [2021] eKLR went ahead to reaffirm use of structural interdicts and supervisory orders to redress the violation of a fundamental right in order to allow the development of Court-sanctioned enforcement of human rights as envisaged in the Bill of Rights.[108]We arrive at the inescapable conclusion that the High Court in determining a judicial review application, exercises only a fraction the jurisdiction it has to determine a constitutional petition. It therefore follows that a determination of a judicial review application cannot be termed as final determination of issues under a constitutional petition. The considerations are different, the orders the court may grant are more expanded under a constitutional petition and therefore the outcomes are different.[109]The Court in hearing a constitutional petition may very well arrive at the same conclusion as the Court hearing a judicial review application. However, the considerations right from the outset are different, the procedures are different, the reliefs that the court may grant are different, the Court will be playing fairly different roles.[110]We consequently arrive at the conclusion that the Court of Appeal erred in holding that the doctrine of res judicata applied to the current case. The Court of Appeal should have at that point found that the High Court was wrong in its conclusion. 28.On sub judice , Section 6 of the Civil Procedure Act provides for the principle of sub judice as follows: -“No court shall proceed with the trial of any suit or proceeding in which the matter in issue is also directly and substantially in issue in a previously instituted suit or proceeding between the same parties, or between parties under whom they or any of them claim, litigating under the same title, where such suit or proceeding is pending in the same or any other court having jurisdiction in Kenya to grant the relief claimed.” 29.In Kenya National Commission on Human Rights v Attorney General; Independent Electoral & Boundaries Commission & 16 others [2002] eKLR the Supreme Court held that for the doctrine of subjudice to stand, the following must be established:a.There is more than one suit filed consecutively over the same subject matter;b.One suit was instituted before the other;c.Both suits are pending in the same court or any other court having jurisdiction; andd.The suits are between the same parties or their representatives. 30.It is evident that the earlier proceedings relied upon , Judicial Review Misc. Application No. E173 of 2021 did not result in a determination on the merits. As the record shows, the Court declined to grant relief on ripeness grounds. The issues now before this Court, which concern alleged violations of constitutional rights and the legality of an ongoing prosecution, were not adjudicated. The Petition therefore cannot be said to be barred by res judicata. 31.The Supreme Court in John Florence Maritime Services Ltd v Cabinet Secretary for Transport (Supra) held that judicial review and constitutional petitions are distinct in scope, procedure, and remedies. A judicial review determination cannot bar a constitutional petition. 32.The doctrine of sub judice, set out in section 6 of the Civil Procedure Act, similarly requires that the matter in issue be directly and substantially the same as that pending before another court. The pending Civil Appeal No. E197 of 2023 concerns anticipated prosecutorial action, whereas the present Petition concerns the legality of an actual prosecution and alleged constitutional violations arising therefrom. The subject matter is therefore not identical, and the doctrine does not apply. 33.The Petition is neither res judicata nor sub judice Whether the Office of the Director of Public Prosecutions acted in contravention of Article 157(11) of the Constitution in directing the prosecution of the Petitioners 34.The respondents insist that this Court should exercise restraint and avoid overstepping its authority. It is submitted that it is within the exclusive Constitutional mandate of the 1st respondent, which he exercises independently, reference is made to Article 157 (10) which provides-The Director of Public Prosecution shall not require the consent of any person or authority for the commencement of criminal proceedings, and in the exercise of his or her powers or functions, shall not be under the direction or control of any person or authority. 35.The Petitioners contend that the Director of Public Prosecutions must act within the boundaries set by Article 157 (11). Evidence indicates he has overstepped these limits, necessitating Court intervention. The DPP must have regard to the public interest, the interests of the administration of justice, and the need to prevent and avoid abuse of the legal process. These considerations are not optional; they form part of the constitutional framework within which prosecutorial power must be exercised. 36.It is argued that the validity of the disputed lease agreement was first examined, resulting in a decision not to pursue prosecution, as outlined in the letter dated September 25, 2016. The change in stance by the Director of Public Prosecutions is due to pressure from the 5th respondent. 37.The question therefore, is whether this Petition has satisfied the legal requirements for the Court to exercise its jurisdiction under Articles 165 (6) and 258. Article 157(11) of the Constitution constrains the Director of Public Prosecutions when exercising his powers, including the decision to charge. He must first consider the public interest, then the administration of justice, and finally the necessity to prevent and avoid abuse of the legal process. The test is disjunctive. The existence of any one of the factors would be sufficient ground to impugn the decision. 38.The Director of Public Prosecutions decided to charge the Petitioners in Makadara Magistrate’s Court Criminal Case No. E7952 of 2023, which was consolidated with case No. E4902 of 2023, following the withdrawal of Criminal case No. 3299 of 2021 under Section 87(a) of the Criminal Procedure Code. 39.In Geoffrey Andare v Attorney General & 2 others [2016] eKLR, the Court observed that the circumstances under which the High Court would intervene in a trial before a subordinate court are well settled and are limited to circumstances where the continuation of the proceedings would amount to a violation of the rights of the Petitioner. The Court cited with approval the decision in George Joshua Okungu and Another vs Chief Magistrate Court Anti-Corruption Court Nairobi and Another Petition No. 227 and 230 of 2009 in which the Court underscored that[50.]“The law is that the Court ought not to usurp the Constitutional mandate of the Director of Public Prosecutions or the authority charged with the prosecution of criminal offences to investigate and undertake prosecution in the exercise of the discretion conferred upon that office. The mere fact that the intended or ongoing criminal proceedings are in all likelihood bound to fail, it has been held time and again, is not a ground for halting those proceedings. That a petitioner has a good defence in the criminal process is a ground that ought not to be relied upon by a Court in order to halt criminal process undertaken bona fides since that defence is always open to the Petitioner in those proceedings. However, if the Petitioner demonstrates that the intended or ongoing criminal proceedings constitute an abuse of process and are being carried out in breach of or threatened breach of the Petitioner’s Constitutional rights, the Court will not hesitate in putting a halt to such proceedings.” 40.Further in Kuria & 3 Others vs Attorney General [2002] 2 KLR 69 the High Court observed that:“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. It is through this mandate of the court to guard its process from being abused or misused or manipulated for ulterior motives…” 41.In 2016, the Office of the Director of Public Prosecutions found there was not enough evidence to support a charge. However, they reopened the case in 2019 due to the insistence of the 5th respondent. Subsequently, they charged the Petitioners and later withdrew the charges under Section 87(a). Presently, the Petitioners are facing identical charges based on the same facts, as indicated by an internal memo dated 28th March 2024 sent by Investigating Officer Maxwell Otieno to the OC Economic and Commercial Crime unit. The memo questions why, despite evident inconsistencies, the Director of Public Prosecution continues with the prosecution. It raises serious concerns about whether this prosecution genuinely serves the public interest, aligns with justice, or could be perceived as an abuse of court process. 42.In almost similar circumstances, in Republic v Director of Public Prosecution & 2 others; Rutto & another (Interested Parties); Toroitich (Ex parte Applicant) (Judicial Review Application E105 of 2024) [2025] KEHC 5041 (KLR) while quashing the decision of the Director of Public Prosecution to charge the Court laid out the circumstances when the High Court may intervene as where-a.The prosecution is actuated by maliceb.There is no evidential basis for the chargesc.The process is intended to harass or intimidate the accusedd.The prosecution violates constitutional rights, such as the right to a fair trial. 43.The 5th respondent's conduct in Nairobi High Court Succession Cause No. 1857 of 2012, where he benefits from rental income from the 1st Petitioner, raises questions about his actual motives. His forceful letters to the Director of Public Prosecution imply he is trying to have his cake and eat it. These issues cast doubt on the DPP's decision to prosecute the Petitioners. 44.The question for the Court is not whether the DPP’s decision was correct, but whether it was made in accordance with the constitutional constraints imposed by Article 157(11). The Court must exercise restraint, recognising the constitutional independence of the DPP, but it must also intervene where the decision to prosecute is shown to be inconsistent with constitutional requirements. 45.On the material before the Court, there is a credible basis for concern that the decision to prosecute was not grounded in a reassessment of evidence, but was instead driven by external pressure. The absence of any new evidential development to justify the reversal of the DPP’s earlier position, combined with the internal memorandum questioning the evidential sufficiency, supports the conclusion that the decision did not comply with Article 157(11) Whether the institution and continuation of the criminal proceedings in Makadara Magistrate’s Court Criminal Case No. E7952 of 2023 as consolidated with case No. E4902 of 2023 violated the Petitioner’s rights? 46.The Petitioners allege violations of Articles 27, 28, 40, 47, and 50 of the Constitution. The right to equal protection and equal benefit of the law under Article 27(1) requires that prosecutorial decisions be made on a rational and consistent basis. Where the same facts have previously been assessed and found insufficient to support a prosecution, a subsequent decision to prosecute without new evidence may raise constitutional concerns. 47.The Petitioners also rely on Article 47, which guarantees fair administrative action. A decision to prosecute must be rational, lawful, and procedurally fair. The Petitioners contend that the DPP has not provided any justification for the change in position since 2016, and that the decision to prosecute them afresh was arbitrary. 48.On the evidence before the Court, including the internal memorandum and the absence of any new evidential material, I am satisfied that the Petitioners’ rights under Articles 27 and 47 were infringed. The decision to prosecute them in these circumstances was not consistent with the constitutional requirements of fairness, rationality, and equal treatment. 49.The hauling of the Petitioners to Court in Criminal Case No. 3299 of 2021 and subsequently in Makadara Magistrate’s Court Criminal Case No. E7952 of 2023, as consolidated with case No. E4902 of 2023 violated their right to equal protection and equal benefit of the law. 50.The Petitioners seek damages in compensation for the violation of their rights. In Mohamed Feisal & 19 others v Henry Kandie, Chief Inspector of Police, OCS, Ongata Rongai Police Station & 7 others; National Police Service Commission & another (Interested Party) [2018] eKLR it was held that:“For a determination on what concerns to keep in mind in awarding damages for constitutional violations, I find solace in Siewchand Ramanoop v The AG of T&T, PC Appeal No 13 of 2004 where the Privy Council held that a monetary award for constitutional violations was not confined to an award of compensatory damages in the traditional sense. Per Lord Nicholls at Paragraphs 18 & 19:‘When exercising this constitutional jurisdiction, the court is concerned to uphold, or vindicate, the constitutional right which has been contravened. A declaration by the court will articulate the fact of the violation, but in most cases, more will be required than words. If the person wronged has suffered damage, the court may award him compensation. The comparable common law measure of damages will often be a useful guide in assessing the amount of this compensation. But this measure is no more than a guide because the award of compensation under section 14 is discretionary and, moreover, the violation of the constitutional right will not always be co-terminous with the cause of action at law. An award of compensation will go some distance towards vindicating the infringed constitutional right. How far it goes will depend on the circumstances, but in principle it may well not suffice. The fact that the right violated was a constitutional right adds an extra dimension to the wrong. An additional award, not necessarily of substantial size, may be needed to reflect the sense of public outrage, emphasize the importance of the constitutional right and the gravity of the breach, and deter further breaches.All these elements have a place in this additional award. “Redress” in section 14 is apt to encompass such an award if the court considers it is required having regard to all the circumstances. Although such an award, where called for, is likely in most cases to cover much the same ground in financial terms as would an award by way of punishment in the strict sense of retribution, punishment in the latter sense is not its object. Accordingly, the expressions “punitive damages” or “exemplary damages” are better avoided as descriptions of this type of additional award.” 51.In Daniel Waweru Njoroge & 17 Others v Attorney General [2015] eKLR the Court held that:“On quantum of damages the court has to bear in mind the following cardinal principles in the assessment of damages namely:-i.Damages should not be inordinately too high or too low.ii.Should be commensurate to the injury suffered.iii.Should not be aimed at enriching the victim but should be aimed at trying to restore the victim to the position he was in before the damage was suffered.iv.Awards in past decisions are mere guides and each case depends on its own facts.” 52.Having regard to the circumstances of the case, I find that an award of Kenya Shillings two million to each of the Petitioners would be adequate compensation. The compensation to be paid by the 1st and 5th Respondent. 53.As the Petition succeeds, I make the following orders-a.A declaration is hereby issued that the institution, prosecution and maintenance of the criminal proceedings against the Petitioners in Makadara Magistrate’s Court Criminal Case No. E7952 of 2023, as consolidated with case No. E4902 of 2023 violates the Petitioners rights to equal protection and equal benefit of the law as provided under Article 27 of the Constitution of Kenya, 2010.b.The 1st and 2nd Petitioners are hereby awarded Kenya Shillings two million each as compensation for violation of their Article 27 rights payable by the 1st and 5th Respondentc.A declaration is hereby made that the prosecution and maintenance of the criminal proceedings against the Petitioners in Makadara Magistrate’s Court Criminal Case No. E7952 of 2023, as consolidated with case No. E4902 of 2023 is an abuse of the Court process.d.That an order of certiorari is hereby issued to bring into this Court for purposes of quashing, and I hereby quash criminal proceedings in Makadara Magistrate’s Court Criminal Case No. E7952 of 2023, as consolidated with case No. E4902 of 2023.e.That an order of prohibition is hereby issued to prohibit the prosecution of the Petitioners in Makadara Magistrate’s Court Criminal Case No. E7952 of 2023, as consolidated with case No. E4902 of 2023f.Costs are awarded to the Petitioners payable by the 1st and 5th Respondent. It is so ordered SIGNED, DATED AND DELIVERED VIRTUALLY AT NAIROBI THIS 11TH DAY OF JUNE 2026.P. M NYAUNDIJUDGEIn the Presence ofFardosa Court AssistantKimaiti for 5th RespondentMs. Weche for Attonery GeneralMs. Musungu holding brief Kibe Mungai for PetitionersAchochi for 1st & 2nd Respondent