Muhuthu & another v Director of Public Prosecutions & 4 others (Constitutional Petition E040 of 2025) [2026] KEHC 11365 (KLR) (27 July 2026) (Judgment)

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT KIAMBU** **CONSTITUTIONAL PETITION NO. E040 OF 2025** IN THE MATTER OF ARTICLES 2, 3, 10, 19, 20, 21, 22, 23, 24, 25, 28, 29, 35,47, 48, 49, 50, 157, 159, 165, 258 AND 259 OF THE CONSTITUTION OF KENYA 2010 AND IN THE MATTER OF THE ALLEGED VIOLATION AND THREAT OF VIOLATION OF RIGHTS AND FUNDAMENTAL FREEDOMS UNDER THE BILL OF RIGHTS AND IN THE MATTER OF THE GUIDELINES ON THE DECISION TO CHARGE, 2019 AND IN THE MATTER OF THE NATIONAL POLICE STANDING ORDERS AND IN THE MATTER OF CONSTITUTION OF KENYA (PROTECTION OF RIGHTS AND FUNDAMENTAL FREEDOMS) PRACTICE AND PROCEDURE RULES, 2013 BETWEEN WINSTONE KAMAU MUHUTHU …………………………………………………….………... 1ST PETITIONER PETER MUNGAI MUNYUI …………………………………..……………………………….….. 2ND PETITIONER AND THE DIRECTOR OF PUBLIC PROSECUTIONS …………………………….….………… 1ST RESPONDENT THE INSPECTOR GENERAL NATIONAL POLICE SERVICE ……………………………………………………….…….…….2ND RESPONDENT S.NO 255638 PC DANIEL MUTHARIMI ………………………………………….…………3RD RESPONDENT AND MOHAMMED FARAH TAHALIL ………………………………………………………….……. 4TH RESPONDENT AND INDEPENDENT POLICING OVERSIGHT AUTHORITY ……………………………………………………………………… INTERESTED PARTY **JUDGMENT** 1. The Petitioner filed the Petition dated 23rd May 2025 and invoked the provisions of Articles 2, 3, 10, 19, 20, 21, 22, 23, 24, 25, 28, 29, 35, 47, 48, 49, 50, 157, 159, 165, 258 and 259 of the Constitution of Kenya seeking the following reliefs; 2. A declaration that the decision to charge the Petitioners in the Chief Magistrate’s Court at Kiambu Criminal Case E2729 of 2023 was unconstitutional, unreasonable and unfair. 3. A declaration that the actions of the Respondents which led to the arrest, charging and prosecution of the Petitioners violated the constitutional rights of the Petitioners to human dignity, security of person, fair administrative action and fair trial contrary to the requirements of Articles 28, 29, 48 and 50 of the Constitution. 4. An order of Certiorari quashing the 1st Respondent’s decision to charge the Petitioners in Kiambu Criminal case E2729 of 2023. 5. An order for compensation and punitive damages for violation of the Constitutional rights of the Petitioners and abuse of power by the Respondents. 6. The costs of the Petition be borne by the Respondents. 7. Any other or further relief that the Honourable Court may deem fit. **PETITIONERS’ CASE** 1. It is the Petitioners’ case that the 4th Respondent is the Complainant in **MCCR/2729/2023** and they are the accused persons therein. The Petitioners state that the 2nd Petitioner has rental units where the 1st Petitioner and the 4th Respondent are tenants therein. 2. The Petitioners state that at the onset of the matter they were charged with robbery with violence with the particulars being that they robbed the 4th Respondent of a laptop make HP valued at Ksh. 35,000/- and at time of the robbery wounded him. The Petitioners aver that the charges against them are fabricated and that the true position can be verified via **OB No. 26/21/8/2023** which the Respondents have blatantly refused to provide the same. 3. They state that on 18/2/2025 the Complainant testified and had at least three narratives of what happened. These contradictions exposed the prosecution’s case to be a fabricated one. On 13/5/2025 the prosecution was allowed by the trial court to amend its charge sheet and the Petitioners were charged with two counts of causing grievous harm and stealing. The Petitioners state that instead of reviewing the decision to charge which was no longer sustainable in accordance with express provisions of the Guidelines on the decision to charge 2019, the prosecution decided to split their bet and gamble. 4. The Petitioners aver that the Office of the Director of Public Prosecution has failed its constitutional mandate of ensuring the interest of administration of justice and preventing and avoiding abuse of the legal process; has violated its duty to disclosure contrary to Article 50 (2) of the Constitution and disregarded the decision to charge guidelines. 5. They state that resultantly the Petitioners were arrested, placed in custody, charged and have been subjected to criminal proceedings since the year 2023 and the Respondent intends to continue with the unlawful and unjustifiable prosecution. 6. The Respondents despite evidence of service did not file any response to the Petition. **PETITIONERS SUBMISSIONS** 1. The Petitioners submits that the responsibilities of the Director of Public Prosecutions (DPP) are spelt out in Article 157 and 50(2) of the Constitution of Kenya 2010. The duties include facilitating a fair trial through disclosure of evidence to be relied upon at trial and to prevent and avoid abuse of the legal process. The Petitioners submit that despite writing to the ODPP to review the charges in **Kiambu MCCR No. E2729 of 2023**, they did not respond to the letter. 2. The Petitioners submit that the investigation file in **Kiambu MCCR No. E2729 of 2023** was not complete thus the ODPP ought to drop the charges against them. **RESPONDENTS SUBMISSIONS** 1. The Respondents advocate Mr Gacharia submitted orally that the Petitioners Petition and written submissions do not point to any breaches by the Respondents. He submitted that the Petitioners have not pointed out which constitutional rights have been breached. The Respondents averred that at no point has there been a complaint to the lower court regarding the issue. **ISSUES FOR DETERMINATION** 1. Having carefully considered the Petition herein and the rival submissions the only issue framed for determination is as follows; 2. **Whether the Petitioners have demonstrated any constitutional infractions that warrant the grant of the prayers sought in the Petition.** **ANALYSIS** 1. It is noteworthy from the outset that the threshold of precision in a constitutional petition in non-negotiable. A Petitioner has to cite the provisions of the Constitution that are alleged to have been violated and give a descriptive account of the said violation. A blanket citation of the constitutional provisions with general complaints will not suffice. 2. The Supreme Court in ***COMMUNICATIONS COMMISSION OF KENYA & 5 OTHERS VS ROYAL MEDIA SERVICES LIMITED & 5 OTHERS [2014]*** held: *“****Although Article 22(1) of the***[***Constitution***](https://new.kenyalaw.org/akn/ke/act/2010/constitution)***gives every person the right to initiate proceedings claiming that a fundamental right or freedom has been denied, violated or infringed or threatened, a party invoking this Article has to show the rights said to be infringed, as well as the basis of his or her grievance. This principle emerges clearly from the High Court decision in* Anarita Karimi Njeru vs. Republic, (1979) KLR 154*: the necessity of a link between the aggrieved party, the provisions of the***[***Constitution***](https://new.kenyalaw.org/akn/ke/act/2010/constitution)***alleged to have been contravened, and the manifestation of the Contravention or infringement. Such principle plays a positive role, as a foundation of conviction and good faith, in engaging the constitutional process of dispute settlement.”*** 1. Similarly, in the case of **Mumo Matemo v Trusted Society of Human Rights Alliance & 5 others [2013] eKLR** the Court stated that: - **“(42) However, our analysis cannot end at that level of generality. It was the High Court’s observation that the petition before it was not the “epitome of precise, comprehensive, or elegant drafting.” Yet the principle in Anarita Karimi Njeru (supra) underscores the importance of defining the dispute to be decided by the court. In our view, it is a misconception to claim as it has been in recent times with increased frequency that compliance with rules of procedure is antithetical to Article 159 of the Constitution and the overriding objective principle under section 1A and 1B of the Civil Procedure Act (Cap 21) and section 3A and 3B of the Appellate Jurisdiction Act (Cap 9). Procedure is also a handmaiden of just determination of cases. Cases cannot be dealt with justly unless the parties and the Court know the issues in controversy. Pleadings assist in that regard and are a tenet of substantive justice, as they give fair notice to the other party. The principle in Anarita Karimi Njeru (supra) that established the rule that requires reasonable precision in framing of issues in constitutional petitions is an extension of this principle. What Jessel, M.R said in 1876 in the case of Thorp v Holdsworth (1876) 3 Ch. D. 637 at 639 holds true today:** **“The whole object of pleadings is to bring the parties to an issue, and the meaning of the rules…was to prevent the issue being enlarged, which would prevent either party from knowing when the cause came on for trial, what the real point to be discussed and decided was. In fact, the whole meaning of the system is to narrow the parties to define issues, and thereby diminish expense and delay, especially as regards the amount of testimony required on either side at the hearing.”** **(43) The petition before the High Court referred to Articles 1, 2, 3, 4, 10, 19, 20 and 73 of the Constitution in its title. However, the petition provided little or no particulars as to the allegations and the manner of the alleged infringements. For example, in paragraph 2 of the petition, the 1st respondent averred that the appointing organs ignored concerns touching on the integrity of the appellant. No particulars were enumerated. Further, paragraph 4 of the petition alleged that the Government of Kenya had overthrown the Constitution, again, without any particulars. At paragraph 5 of the amended petition, it was alleged that the respondents have no respect for the spirit of the Constitution and the rule of law, without any particulars.** **(44) We wish to reaffirm the principle holding on this question in Anarita Karimi Njeru (supra). In view of this, we find that the Petition before the High Court did not meet the threshold established in that case. At the very least, the 1st Respondent should have seen the need to amend the petition so as to provide sufficient particulars to which the respondents could reply. Viewed thus, the Petition fell short of the very substantive test to which the High Court made reference to. In view of the substantive nature of these shortcomings, it was not enough for the superior court below to lament that the petition before it was not the “epitome of precise, comprehensive, or elegant drafting,” without requiring remedy by the 1st Respondent.”** 1. In light of the above, the requirements for a successful Constitutional Petition are simply that the Petitioner should set out the Constitutional provisions, that he believes have been violated or threatened, and the manner in which the Respondent(s) have violated those provisions. It is not enough for the Petitioner to just list the Constitutional Provisions without demonstrating how they were infringed upon. 2. The issue before this Honourable Court is whether the Petitioners constitutional rights under Article 2, 3, 10, 19, 20, 21, 22, 23, 24, 25, 28, 29, 35, 47, 48, 49, 50, 157, 159, 165, 258 and 259 of the Constitution were violated by the Respondents. 3. The crux of the Petition is that the Petitioners were charged in **Kiambu MCCR/2729/2023.** Upon the Complainant testifying in the matter, it became clear that there were contradictions between the charges preferred against the Petitioners and the evidence of the Complainant (prosecution). For this reason, the Petitioners wrote to the ODPP requesting it to review its decision to charge and or continue with the charges against the Petitioners. But to the contrary the ODPP applied to amend the charge sheet, which it did, and substituted the charges of robbery with violence with charges of causing grievous harm and stealing which the Petitioners call a gamble. 4. The Petitioners aver that the charges are fabricated thus the ODPP violated Article 157 (11) of the Constitution by failing to aid the interest of justice, and the need to prevent and avoid abuse of the legal process. 5. It is worth noting that the Petitioners challenge came at a time where a formal complaint was made at Ruaka Police Station. The Petitioners do not deny the existence of the same but they challenge the ODPP’s decision to charge them and their continuity of the charges before the trial court. The National Police Service and the Office of the Director of Public Prosecution have a Constitutional and statutory mandate and powers to respectively investigate and prosecute crimes. These powers have to be exercised within the parameters set by the law. 6. In **Republic v Commissioner of Police and Another ex parte Michael Monari & Another [2012] eKLR** the Court held that: ***“ … the police have a duty to investigate on any complaint once a complaint is made. Indeed, the police would be failing in their constitutional mandate to detect and prevent crime. The police only need to establish reasonable suspicion before preferring charges. The rest is left to the trial court...As long as the prosecution and those charged with the responsibility of making the decisions to charge act in a reasonable manner, the High Court would be reluctant to intervene....”*** 1. In this matter, the Petitioners were arrested and charged before a competent court vested with jurisdiction to handle the charges preferred against them. Their rights under Article 50 have automatically crystallized, with the prosecution bearing the burden to prove its case against the Petitioners and allowing them a fair opportunity to defend themselves. They will at all times remain innocent until proved guilty. The Petitioners’ claim that the evidence of the Complainant has exposed the prosecutions’ case (that it’s a fabricated one) and the charges ought to be dropped. This is a factual issue that can only be determined by the trial court handling the matter before it. 2. The Court in **Kipoki Oreu Tasur v Inspector General of Police & 5 Others [2014] eKLR** stated that: ***“ The criminal justice system is a critical pillar of our society. It is underpinned by the Constitution, and its proper functioning is at the core of the rule of law and administration of justice. It is imperative, in order to strengthen the rule of law and good order in society, that it be allowed to function as it should, with no interference from any quarter, or restraint from the superior Courts, except in the clearest of circumstances in which violation of the fundamental rights of individuals facing trial is demonstrated…”*** 1. The above decisions reiterate the 1st, 2nd and 3rd Respondents duty to conduct investigations into complaints and subsequently, if there is enough evidence, to charge the person accused of the offence. Criminal proceedings are legal procedures that must be conducted and enforced. 2. In this case, it has not been suggested that the Respondents are trying to steal a match by changing the goal post. The ODPP has a right to amend the charge sheet during trial where it deems it necessary hence this does not amount to violation of the Petitioners’ constitutional rights. 3. In **Paul Ng’ang’a Nyaga vs Attorney General & 3 Others (2013) eKLR** it was held that: ***“…………… this court can only interfere with and interrogate the acts of other Constitutional bodies if there is sufficient evidence that they have acted in contravention of the Constitution.”*** 1. In the above foregoing, this Court is satisfied that there no good reason to interfere with the ODPP’s decision to continue with the charges before the trial court. The trial magistrate handling **Kiambu MCCR/E2729/2023** in our justice system is a well-trained judicial officer who will be able to discern if the Petitioners have a case to answer or not. This Honourable Court will therefore not interfere with the lower courts proceedings. 2. The upshot is that this Honourable Court is satisfied that although the Petitioners have cited numerous provisions of the Constitution i.e Article 2, 3, 10, 19, 20, 21, 22, 23, 24, 25, 28, 29, 35, 47, 48, 49, 50, 157, 159, 165, 258 and 259 they have failed to precisely show how those provisions were contravened by the Respondents and how their constitutional rights have been or are threatened to be violated by the Respondents. **FINDINGS AND DETERMINATION** 1. For the foregoing reasons the Petition dated 23rd May 2025 is found to be devoid of merit and it is hereby dismissed accordingly. 2. Each party to bear their own costs of the Petition. Orders accordingly. **DATED SIGNED AND DELIVERED VIA TEAMS AT VOI THIS 27TH DAY OF JULY, 2026.** **A.MSHILA** **JUDGE** **In the presence of;** Sanja/Millicent - Court Assistants Gachuiri – For the Petitioners NA – For the Respondents