https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10081

 **REPUBLIC OF KENYA** **IN THE HIGH OF KENYA AT KERUGOYA** **CONSTITUTIONAL PETITION NO. E008 OF 2025** **IN THE MATTER OF ARTICLES 22 (1), 23 (1), 25 (c), 27, 28, 29, 47, 49, 50, 157 (11)** **165 (3) (b) & 258 OF THE CONSTITUTION** **AND** **IN THE MATTER OF SECTIONS 8 AND 9 OF THE LAW REFORM ACT** **AND** **IN THE MATTER OF VIOLATION OF THE FUNDAMENTAL RIGHTS AND FREEDOMS OF THE PETITIONER UNDER THE CONSTITUTION** **BETWEEN** **FRANCIS GICHUKI MUTHONI………...…………..…PETITIONER/APPLICANT** **VERSUS** **THE DIRECTOR OF PUBLIC PROSECUTIONS.………………1ST RESPONDENT** **THE DIRECTOR GENERAL OF POLICE....................................2ND RESPONDENT** **HON. ATTORNEY GENERAL........................................................3RD RESPONDENT** **JUDGMENT** 1. By a Notice of Motion under certificate of urgency dated 13th June, 2025, brought under Articles 22, 23, 157 (11) and 165 (3) (b) (d) of the Constitution, Sections 8 and 9 of the Law Reform Act and Rule 23 of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013), the Applicant seeks that: 1. *Spent* 2. *Pending the hearing and determination of the Petition herein, this Honourable Court be pleased to issue an order restraining the 1st and 2nd Respondents from arresting, detaining, arraigning or prosecuting the Petitioner in connection with Wanguru Magistrates Court Criminal Case No. E241 of 2025 or any other proceedings arising from the subject commercial dispute between Jomec Limited and Louver’s Barrage Engineering Limited.* 3. *Pending the hearing and determination of the Petition, this Honourable Court be pleased to reinstate the police bond earlier granted to the Petitioner.* 4. *This Honourable Court be pleased to issue an order suspending and/or staying the proceedings in Wanguru Magistrates Court Criminal Case No. E241 of 2025 pending the hearing and determination of the Petition herein in Wanguru Magistrates Court Criminal Case No. E241 of 2025.* 5. *This Honourable Court be pleased to issue a temporary order restraining the 1st and 2nd Respondents from further arresting, detaining, charging, or prosecuting the Petitioner in relation to the subject matter of the said commercial transaction, pending the hearing and determination of this Petition.* 6. *This Honourable Court be pleased to declare that the arrest, continued prosecution and warrants of arrest issued against the Petitioner in Wanguru Magistrates Court Criminal Case No. E241 of 2025 are unconstitutional, unlawful, and an abuse of the criminal justice process.* 7. *This Honourable Court be pleased to declare that the use of the criminal justice process to enforce a civil debt constitutes an abuse of legal process and is contrary to the Constitution of Kenya.* 8. *The costs of this Application be provided for.* **The Petitioner’s Case** 1. In November 2024, JOMEC Limited entered into a commercial agreement with Louver’s Barrage Engineering Limited for the supply, delivery, and installation borehole pumping equipment at JOMEC’s premises. Payment was to be made after a credit period, the duration of which was to be mutually agreed, and in line with this agreement, Louver’s delivered the equipment and raised three invoices totaling to Ksh. 531,300. At all times, he acted as the Operations Administrator at JOMEC and was the liaison between JOMEC and Mr. Antony Ndiritu of Louver’s. Upon completion of the works, JOMEC acknowledged receipt and confirmed the debt, but explained that payment would be delayed pending a 3rd party funding remittance. Unexpectedly on 10/6/2025, Mr. Ndiritu lodged a criminal complaint at Wanguru Police Station alleging that he obtained goods by false pretences contrary to Section 313 of the Penal Code, by allegedly receiving the supplies and failing to pay for them. The matter was immediately registered as Wanguru Criminal Case No. E241 of 2025, however, the plea was deferred to 12/6/2025, bond forfeited and a warrant of arrest issued, despite the explanation tendered by his advocate that he was undergoing a scheduled medical procedure at Mama Lucy Kibaki Hospital. During proceedings, the investigating officer, Constable Wachira, made prejudicial remarks regarding his familial ties to a political figure, which he views as irrelevant and indicative of personal harassment that has no basis to the facts or law surrounding the matter. He asserts that the dispute is entirely commercial and arises from a contractual transaction between Jomec and Louver’s, and he is neither a shareholder nor director of the former and lacked authority to commit the company financially. His role was therefore limited to administrative coordination, and the attempt to criminalize him personally for a corporate debt constitutes an abuse of the criminal justice process. He avers that no evidence has been provided to demonstrate that he made any false representation with intent to defraud. Section 313 of the Penal Code requires proof of deceitful intent and misrepresentation, neither of which has been alleged with particularity. The goods were supplied to a legal entity, not to him personally, and no fraudulent inducement has been established. He maintains that the criminal complaint is a thinly veiled tactic to compel payment of a civil debt which is legally unfounded, and the decision to prosecute him infringes his rights under Articles 29, 47, 49 and 50 of the Constitution. The institution and continuance of the criminal proceedings against him, including the issuance of an arrest warrant and forfeiture of bond, violate his constitutional rights, and unless this court intervenes, he risks imminent arrest, detention, reputational harm, emotional distress, and undue harassment for actions that were taken in the normal course of employment. **The Respondents’ Case** 1. The Respondents opposed the application vide a replying affidavit sworn on 23/7/2025 byCpl Patrick Wachira, a criminal investigator with the Directorate of Criminal Investigations attached to DCI Mwea East. He avers that the Applicant was charged in Wanguru Criminal Case No. 241/2025 with 2 counts of obtaining money by false pretences contrary to Section 313 of the Penal Code. The Applicant was arrested and released on police cash bail on 14/5/2025, but when he failed to subsequently appear in court as required, his bond was forfeited and a warrant for his arrest issued. The medical document produced by his advocate for his non-appearance turned out to be a forgery. He urges court should consider that the complainant herein Mr. Anthony Mubia Nderitu, who is both deaf and dumb. 2. The Respondents further filed grounds of opposition dated 26/8/2025 that: 1. *The Application & Petition is premature and amounts to forum shopping. The Petitioner has not exhausted the adequate and available remedies under the Criminal Procedure Code, including seeking redress before the trial court or lodging a revision or appeal.* 2. *The orders sought, including declarations that ongoing prosecution is unconstitutional or an abuse of process, offend the constitutional doctrine of separation of powers. The discretion to prosecute vests solely with the DPP under Article 157 of the Constitution, 2010.* 3. *The Petitioner has not demonstrated with cogent evidence that the criminal process is being used to settle a civil debt or that the prosecution is being conducted in bad faith, with ulterior motives or malice.* 4. *This Honourable Court lacks jurisdiction to interfere with ongoing criminal proceedings before a competent subordinate court absent evidence of unfair trial, violation of constitutional rights, or manifest abuse of process.* 5. *The criminal case arises from a complaint duly investigated and forwarded to the DPP, who, after independent review, determined that there was sufficient evidence to prefer charges. The continued prosecution is in the public interest and aligned with due process.* 6. *The issuance of warrants of arrest and the decision to charge the Petitioner were made in accordance with the law, including the Constitution, the Criminal Procedure Code, and applicable statutes. The Petitioner has not demonstrated any violation of their constitutional rights.* 7. *The reinstatement of a police bond is not a constitutional right, nor is it determinative of the legality of arrest or prosecution. It is a discretionary administrative decision that cannot override a valid court process.* 8. *The mere existence of a civil dispute does not preclude criminal liability where elements of a criminal offence are present. The Court must guard against attempts to shield criminal conduct behind the guise of civil disputes.* 9. *Constitutional petitions are not intended to circumvent established procedures in criminal trials. The Petitioner’s application is an attempt to derail lawful proceedings and should not be entertained.* 10. *The Petitioner has failed to demonstrate any real or imminent threat to their fundamental rights under the Constitution. Mere apprehension or dissatisfaction with lawful prosecution is insufficient to warrant constitutional intervention.* 11. *Staying or terminating the criminal proceedings would not serve the interests of justice and may undermine public confidence in the criminal justice system.* 12. *The application and petition be dismissed with costs for being unmerited, incompetent, and premature and an abuse of the court process.* **Submissions** 1. The Applicant faults the Respondents for arresting him instead of the directors of the JOMEC Limited to enforce a civil claim for recovery of Ksh. 531,300, and cites ***Josephat Kibagendi Mogaka v The Hon. Attorney General &2 Others (Petition E021 of 2022)[2021] KEHC 22388 (KLR) and Paul Ole Sabore v Attorney General (2017) eKLR***. He urges that his prosecution is tainted with malice, discriminatory, unconstitutional, arbitrary, oppressive and intended to achieve an ulterior motive which must be stayed to avert any likelihood of suffering irreparable injury, and cites ***Patrick Ngunjiri Maina v D.P.P. (2017) eKLR***. 2. The Respondents urge that this court is divested of the jurisdiction to interfere with the ongoing criminal case against the Applicant, and cite ***Owners of the Motor Vessel “'Lillian S” v Caltex Oil (Kenya) Ltd [1989] KECA 48 (KLR) and Chemonges & another v Director of Criminal Investigations & 3 others; Aspire Limited (Interested Party) [2025] KEHC 11567 (KLR)****.* They urge that both criminal and civil proceedings can run concurrently as provided under Section 193 A of the Criminal Procedure Code, and cite ***Republic v Chief Magistrates Court at Mombasa; Ex-parte Ganijee & Another [2002] 2 KLR 703***. They cite ***Republic v Director of Public Prosecutions & Another; Ex-parte Patrick Ogola Onyango & 8 others [2016] eKLR and Thuita Mwangi & 2 Others v Ethics & Anti-Corruption Commission and 3others [2013] eKLR, Kenya Commercial Bank Limited & 2 Others v Commissioner of Police & Another [2013] eKLR, JWK v IKE [2024] KEHC 11647 (KLR) and Republic v Commissioner of Police and Another ex parte Michael Monari &Another [2012] eKLR*** to beseech the court to grant a measure of deference to the DPP’s exercise of prosecutorial discretion and investigative powers of the police. In praying for the dismissal of the application and the petition with costs, they urge that the petition is purely with the intent of derailing the wheels of justice and shielding the Applicant from a lawful investigation and trial process. **Analysis and Determination** 1. After a critical consideration of the petition together with the responses thereto, it is clear to this court that the pertinent issue for determination is whether the application is merited. 2. Whereas there can be no doubt that the field of investigations of criminal offences is exclusively within the domain of the police and the Respondent, **this court has the powers to halt such a process if the intended criminal proceedings are oppressive, an abuse of the court process and amount to a breach of fundamental rights and freedoms.** 3. It has further been held that an oppressive or vexatious investigation is contrary to public policy and that, the police in conducting criminal investigations are bound by the law and the decision to investigate a crime (or prosecute in the case of the DPP) must not be unreasonable or made in bad faith, or intended to achieve ulterior motive or used as a tool for personal score-settling or vilification. The court has inherent power to interfere with such investigation or prosecution process. *(See****Ndarua v R [2002] 1 EA 205****)*. 4. The undisputed facts herein are that JOMEC Limited, the Applicant’s employer, contracted Louvier’s Barrage Engineering Limited for the supply, delivery and installation of borehole pumping equipment. Upon completion of the works, 3 invoices totaling Ksh. 531,300 were raised, but no money was forthcoming, necessitating the institution of the criminal charges for obtaining goods by false pretences. 5. Whereas the Applicant insists that the impugned charges arise solely from a purely commercial transaction, and are therefore civil in nature, the Respondents assert that both criminal and civil processes can lawfully proceed concurrently, provided that each is independently founded upon a proper factual and legal basis. 6. The court is alive to its obligation to ensure that the criminal justice system is applied bona fides for the proper and genuine purpose of enforcing the law. As counseled in in ***Republic v Chief Magistrate’s Court at Mombasa Ex Parte Ganijee & another [2002] eKLR,*** the court *(P. Waki J)* cited with approval the decision in ***Vincent Kibiego Saina v The Attorney-General*** where Kuloba, J. held that: ***“It is not the purpose of a criminal investigation or a criminal charge or prosecution to help individuals in the advancement of frustrations of their civil cases. That is an abuse of the process of the court. No matter how serious the criminal charges may be, they should not be allowed to stand if their predominant purpose is to further some other ulterior purpose. The sole purpose of criminal proceedings is not for the advancement and championing of a civil cause of one or both parties in a civil dispute, but it is to be impartially exercised in the interest of the general public interest. When a prosecution is not impartial or when it is being used to further a civil case, the court must put a halt to the criminal process. No one is allowed to use the machinery of justice to cause injustice and no one is allowed to use criminal proceedings to interfere with a fair civil trial. If a criminal prosecution is an abuse of the process of the court, oppressive or vexatious, prohibition and/or certiorari will issue and go forth... When a remedy is elsewhere provided and available to person to enforce an order of a civil court in his favour, there is no valid reason why he should be permitted to invoke the assistance of the criminal law for the purpose of enforcement. For in a criminal case a person is put in jeopardy and his personal liberty is involved. If the object of the appellant is to over-awe the respondent by brandishing at him the sword of punishment thereunder, such an object is unworthy to say the least and cannot be countenanced by the court... In this matter the interested party is more actuated by a desire to punish the applicant or to oppress him into acceding to his demands by brandishing the sword of punishment under the criminal law, than in any genuine desire to punish on behalf of the public a crime committed. The predominant purpose is to further that ulterior motive and that is when the High Court steps in...”*** 1. This Court is mindful of the provisions of Section 193A of the Criminal Procedure Code, which permits the concurrent institution of criminal and civil proceedings. 2. That provision of the CPC has been extensively discussed in ***Republic v Chief Magistrate Criminal Division & another Ex-parte Mildred Mbuya Joel [2014] KEHC 7794 (KLR)***, by the court *(G.V Odunga J, as he then was****)***, as follows: ***“It is not enough to simply state that the criminal proceedings ought to be halted because there are pending civil proceedings touching on the same subject matter. Neither does it suffice to be content with stating that because there is an existence of a civil dispute or suit, the entire criminal proceedings commenced based on the same set of facts are an abuse of the court process. There is a need to show how the process of the court is being abused or misused and a need to indicate or show the basis upon which the rights of the applicant are under serious threat of being undermined by the criminal prosecution. In absence of concrete grounds for supposing that a criminal prosecution is an “abuse of process”, is a “manipulation”, “amounts to selective prosecution” or such other processes, or even supposing that the applicants might not get a fair trial as protected in the Constitution, it is not mechanical enough that the existence of a civil suit precludes the institution of criminal proceedings based on the same facts. As rightly submitted on behalf of the Respondents, section 193A of the Criminal Procedure Code Cap 75 Laws of Kenya provides for concurrent civil and criminal proceedings.”*** 1. Article 157 (10) of the Constitution gives the DPP operational independence by providing that, ***“The Director of Public Prosecutors 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 director or control of any person or authority.”*** 2. The circumstances of this case are reminiscent of the principle implied in the Rule in ***Turquand’s case***, (*Royal British Bank v. Turquand* (1856) 6 E & B 327) that persons dealing with a company are not required to know the internal management of the company. The Applicant was candid that he had the authority to contract on behalf of JOMEC Limited, and therefore, he cannot now be heard to contend that he was not a director. The Complainant, in the criminal case, assumed and properly so, that the Applicant had authority to contract on behalf of JOMEC Limited. 3. The directors of JOMEC Limited as at 12/6/2025 were John Michael Njenga Mututho and Leah Njeri Njenga. The 1st Respondent in exercise of its mandate under Article 157 (11) of the Constitution to consider “***the public interest, the interests of the administration of justice and the need to prevent and avoid abuse of the legal process***”, deemed it appropriate to proceed against the Applicant, who was exercising executive authority on behalf of JOMEC Limited. It is evident that the Applicant’s explanation for his failure to attend court for pleas taking on 11/6/2025 was founded on a medical report evenly dated, which was subsequently established to be a forgery. That conduct inevitably leads to the inference that the Applicant deliberately sought to evade the due process of the law. 4. In view of the foregoing, this court is satisfied that there was reasonable and probable cause to charge the Applicant. The court may not, however, direct the 1st Respondent in the circumstances of this case to exercise their discretion in a particular manner, there having not been demonstrated an *arguable* case of breach of the provisions of Article 157 (11) of the Constitution. 5. The Applicant has failed to demonstrate that his intended prosecution is actuated by malice, unlawful, abuse of the court process or is otherwise calculated to oppress, embarrass or harass him. Furthermore, no evidence had been placed before the court to suggest that the criminal proceedings would deprive the Applicant of a fair trial under Article 50 of the Constitution. To the contrary, the Applicant will be afforded an opportunity to defend himself, cross-examine witnesses, and adduce evidence in support of his case, which, in this court’s considered view, is the proper course to take, in the circumstances. 6. With respect, the mere apprehension that the prosecution may culminate in an acquittal, or the existence of a parallel civil dispute, is not in itself sufficient to warrant judicial intervention. Without delving into the merits of the criminal case, there is *prima facie* evidence that the institution of the criminal charges was driven by a legitimate pursuit of justice, and this court is not persuaded to grant the conservatory orders sought. **ORDERS** 1. Accordingly, for the reasons set out above, the Court finds the application dated 13/6/2025 to be without merit and it is dismissed. 2. There shall be no order as to costs. **DATED AND DELIVERED THIS 9TH DAY OF JULY 2026.** **EDWARD M. MURIITHI** **JUDGE** **APPEARANCES:** Mr. Sagara with Ms. Maina for the Petitioner. Mr. Mwangi for DPP/ 1st Respondent. Mr. Kiongo with Ms. Kanini and Mr. Muriithi for 2nd and 3rd Respondents.