Mwando v Director of Public Prosecutions & 5 others (Constitutional Petition E022 of 2025) [2026] KEHC 8621 (KLR) (12 June 2026) (Ruling)

Mwando v Director of Public Prosecutions & 5 others (Constitutional Petition E022 of 2025) [2026] KEHC 8621 (KLR) (12 June 2026) (Ruling) Neutral citation: [2026] KEHC 8621 (KLR) Republic of Kenya In the High Court at Kakamega Constitutional Petition E022 of 2025 S Mbungi, J June 12, 2026 Between John Keya Mwando Petitioner and The Director of Public Prosecutions 1st Respondent The Director Of Criminal Investigations 2nd Respondent The Hon. Attorney General 3rd Respondent Mwanzo Obaye 4th Respondent Peter Mutevesi Obaye 5th Respondent and Dr. Elijah Chikamai Ben Interested Party Ruling 1.Before this Court is the Notice of Motion dated 27th October 2025 brought under Articles 22 and 23 of the Constitution and the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013. 2.The Applicant seeks principally an order staying and/or suspending proceedings in Butali Principal Magistrate’s Court Criminal Case No. E613 of 2025, Republic v John Keya Mwando, pending the hearing and determination of the Petition. 3.The application is supported by the affidavit of the Applicant, sworn on 27th October 2025. 4.The Applicant depones that in 1976 he purchased approximately 8.5 acres out of land parcel number Kakamega/Malava/445 from the late Opaye Ngisiobeli, the father of the 4th and 5th Respondents. 5.According to the Applicant, after the death of the vendor and following succession proceedings, disputes arose culminating in Kakamega HCCC No. 202 of 1986. The dispute was referred to elders whose award was subsequently adopted as a judgment of the court on 15th July 1987. The Applicant states that the award recognized his purchase and entitlement to the land. 6.It is further averred that the land was eventually transferred to him through execution by the Executive Officer of the court, resulting in the creation of parcels Kakamega/Malava/1840 and 1841. 7.The Applicant subsequently disposed of parcel number Kakamega/Malava/1840 to the mother of the Interested Party and the same was later transferred to the Interested Party. 8.The Applicant further states that disputes over the land resurfaced leading to Butali SPM Land Case No. 24 of 2020 and thereafter ELC Appeal No. E002 of 2023. He contends that allegations of fraud raised by the 4th and 5th Respondents were rejected by both courts. 9.The Applicant avers that notwithstanding those proceedings; he was arrested on 30th July 2025 and subsequently charged in Butali Criminal Case No. E613 of 2025 with the offence of intermeddling with the property of a deceased person contrary to Section 45 of the Law of Succession Act. 10.His contention is that the criminal prosecution is intended to intimidate, harass and punish him over matters that have already been conclusively determined by competent courts. 11.The 4th and 5th Respondents opposed the application through Grounds of Opposition dated 28th April 2026. The State Respondents did not file any response. Issues For Determination 12.Having considered the pleadings, affidavits, submissions and authorities cited, the Court is of the view that the following issues arise for determination:a.Whether the absence of a replying affidavit renders the application unopposed.b.Whether the Applicant has established a prima facie constitutional case.c.Whether the Applicant has demonstrated prejudice warranting grant of conservatory orders.d.Whether public interest favours grant of the orders sought.e.What orders should issue. Analysis And Determination a. Whether the absence of a replying affidavit renders the application unopposed 13.The Applicant submitted that since the 4th and 5th Respondents only filed Grounds of Opposition and the State Respondents filed nothing, the factual averments in his supporting affidavit stand admitted. 14.The Court agrees with the principle stated in Daniel Kibet Mutai & 9 Others v Attorney General and Peter O. Nyakundi & 68 Others v Principal Secretary State Department of Planning that where affidavit evidence is not controverted, the same may remain unchallenged. 15.However, the absence of a replying affidavit does not automatically entitle a party to the orders sought. The applicant must still satisfy the legal threshold applicable to the remedy sought. 16.Constitutional remedies, particularly conservatory orders affecting ongoing criminal proceedings, are not granted merely because the factual depositions are uncontroverted. The Court must independently 17.The Applicant must nevertheless establish a basis for intervention by this Court. b. Whether the Applicant has established a prima facie constitutional case 18.The applicable principles for grant of conservatory orders were summarized in Centre for Rights Education and Awareness (CREAW) & 7 Others v Attorney General and reaffirmed in Isaiah Luyara Odando & Another v Kenya Revenue Authority & 6 Others. The Applicant must demonstrate a prima facie case with a likelihood of success. 19.A prima facie case was defined in Mrao Ltd v First American Bank of Kenya Ltd & 2 Others as a case which, on the material presented, shows an apparent infringement of a right calling for rebuttal. 20.The Applicant has placed before the Court a lengthy history of litigation concerning the suit property spanning nearly four decades. 21.It is notable that the ownership and transfer of the property appear to have been the subject of judicial determination in HCCC No. 202 of 1986, Butali SPM Land Case No. 24 of 2020 and ELC Appeal No. E002 of 2023. 22.It is also not disputed that the criminal charge concerns alleged intermeddling with the estate of the deceased and touches on the same property that formed the subject matter of the previous proceedings. 23.The Court is alive to the principle that the existence of a civil dispute does not automatically bar criminal proceedings. 24.In Commissioner of Police & Another v Kenya Commercial Bank Ltd & 4 Others, the Court held that the police are entitled to investigate criminal conduct notwithstanding the existence of civil proceedings. 25.Similarly, Article 157 of the Constitution grants the Director of Public Prosecutions independent authority to institute criminal proceedings. 26.However, courts retain jurisdiction to intervene where criminal proceedings are instituted for an ulterior purpose or amount to an abuse of process. 27.In Republic v Director of Public Prosecutions Ex Parte Chamanlal Vrajlal Kamani the Court held that criminal proceedings commenced for collateral purposes may be halted. 28.In the present matter, the Applicant has demonstrated that the acts forming the basis of the criminal charge relate to transactions and court-sanctioned processes that occurred several decades ago and which have repeatedly been the subject of judicial pronouncements. 29.At this interlocutory stage, the Court is satisfied that the Petition raises substantial constitutional questions regarding abuse of prosecutorial power, fair administrative action and fair trial rights. 30.Consequently, the Applicant has established a prima facie case warranting further interrogation at the hearing of the Petition. c. Whether the Applicant has demonstrated prejudice 32.The next consideration is whether failure to grant conservatory orders would render the Petition nugatory. The Applicant has already been arrested, charged and admitted to bail. 33.If the criminal proceedings continue to conclusion before the constitutional issues raised in the Petition are determined, the substratum of the Petition may be substantially diminished. 34.In Alfred N. Mutua v Ethics and Anti-Corruption Commission & 4 Others the Court of Appeal held that where continuation of criminal proceedings would undermine pending constitutional proceedings, interim protection may be warranted. 35.The Court is persuaded that there exists a real risk that the Petition may be rendered nugatory if the criminal proceedings proceed before the constitutional issues raised herein are determined. d. Whether public interest favors grant of conservatory orders 37.Public interest is an important consideration whenever a court is invited to halt criminal proceedings. 38.The Court appreciates that prosecution of crime serves a significant public purpose and courts should exercise great restraint before interfering with prosecutorial discretion. Nevertheless, public interest also requires fidelity to the Constitution and protection against abuse of legal process. 39.Article 157(11) requires the Director of Public Prosecutions, in exercising prosecutorial powers, to have regard to public interest, the administration of justice and the need to prevent abuse of legal process. 40.Where credible allegations of abuse of prosecutorial power are raised, public interest is best served by allowing the Court an opportunity to interrogate those allegations before the criminal process proceeds further. 41.The Court therefore finds that the public interest in preserving the integrity of constitutional adjudication outweighs the temporary delay occasioned by suspension of the criminal proceedings. 43.Having considered the application, the affidavits, the submissions and the applicable law, I am satisfied that the Applicant has met the threshold for grant of conservatory orders. 44.Accordingly, the Notice of Motion dated 27th October 2025 is allowed in the following terms:a.A conservatory order is hereby issued staying and/or suspending proceedings in Butali Principal Magistrate’s Court Criminal Case No. E613 of 2025, Republic v John Keya Mwando, pending the hearing and determination of this Petition.b.The Petition shall be set down for hearing on a priority basis.c.Costs of the application shall abide the outcome of the Petition.d.Right of Appeal 14 days.It is so ordered. DATED, SIGNED AND DELIVERED IN OPEN COURT AT KAKAMEGA THIS 12TH DAY OF JUNE,2026.S.N.MBUNGIJUDGEIn the Presence of:-CA: Zilda/VelmaMs. Osango for the 3rd and 4TH Respondent present online.Mr. Mbaka for the Applicant absent.Ms. Kiu for the ODPP present online.MR. Osango:I shall file replying affidavit to the Petition. I seek 30 days leave.Court: Leave granted, copy of the ruling be availed to Mr. Osango. Mention 12.11.2026.