https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10752

Mwenda & 3 others v Director of Public Prosecutions & 2 others (Miscellaneous Criminal Application 083 of 2026) [2026] KEHC 10752 (KLR) (Crim) (16 July 2026) (Ruling) Neutral citation: [2026] KEHC 10752 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Law Courts) Criminal Miscellaneous Criminal Application 083 of 2026 K Kimondo, J July 16, 2026 Between Leah Mwenda 1st Applicant Paul Wamalwa 2nd Applicant Kevin Karuga 3rd Applicant Kevin Mureithi 4th Applicant and Director of Public Prosecutions 1st Respondent Inspector General Of Police 2nd Respondent Director Of Criminal Investigations 3rd Respondent Ruling 1.The applicants primarily pray for anticipatory bail on reasonable terms and conditions; and, for a conservatory order to restrain the respondents “from arresting, detaining or otherwise interfering with the liberty of the applicants”. 2.Their notice of motion is dated 30th March 2026. From the supporting affidavit of Leah Mwendwa (the 1st applicant) she is the Chief Operating Officer of AfricasTalking (K) Limited (hereafter the company). The relationship with the other applicants is not clear. The 1st applicant only states that she has authority to swear the affidavit on their behalf. But I gather from the text of the deposition that they all work for the company. 3.The applicant deposes that on 26th March 2026, officers from the 3rd respondent “executed a search warrant” at the offices of the company. The warrant was issued by the Milimani Chief Magistrates Court in Miscellaneous Criminal Application No. E1344 of 2026 (hereafter the warrants) 4.The applicants granted the police access in an operation that lasted 6 hours. The police officers confiscated “several laptops” and documents listed in exhibit LM-1 and insisted that [the 1st applicant] accompany them. It was only after the intervention of their advocate that the demands ceased. 5.The applicants are thus apprehensive that the police will arrest them outside the mandate of the search warrant and to exert pressure to resolve “ongoing civil disputes relating to the subject matter”. 6.Learned counsel, Mr. Khan, submitted that absent the intervention by the advocates, the police would have overreached their power and arrested the applicants in breach of the Constitution. He added that the lower court had delivered a ruling directing the DCI to either return the equipment seized or to charge the applicants. The ruling or order is not annexed. Furthermore, he states, the applicants have always been prepared to comply with court orders or any lawful summons. 7.The application is opposed by the Director of Public Prosecutions (hereafter the DPP) through a replying affidavit sworn on 17th June 2026 by PC Noah Makokha. The pith of those objections is that the DCI is acting on a complaint of fraud made by a shareholder or CEO of the company, Samuel Gikandi. 8.On 14th April 2026 seven laptops taken from the company and were submitted to the DCI Headquarter’s Cyber Crime Unit under an Exhibit Memo No. 51/2026. A digital forensic report is still awaited. Furthermore, the applicants have “failed to provide passwords to all the laptops two of which are pending analysis at the Digital Forensics Lab”. In his view, this is in breach of the order of the lower court. 9.At paragraph 14, he deposes that investigations show that the complainant is “the largest shareholder and the CEO of the company as per the last Board meeting held virtually on 17th March 2023 minute S20/23”. He further avers that “no arrests or attempts to arrest the applicants have been made since investigations are ongoing”. He denies the allegations of coercion made by the applicants. 10.Learned prosecution counsel, Ms. Awino, thus submitted that anticipatory bail is undeserving in this case; and, that the police cannot be barred from carrying out investigations. It was also submitted that by dint of Article 157 of the Constitution, the DPP is at liberty to charge the applicants. 11.On 18th June 2026, I heard further submissions from both learned counsel for the applicants and the respondents. 12.I take the following view of the matter. There would seem to be live proceedings in the lower court though the latest ruling referred to by learned counsel, Mr. Khan, has not been provided to the High Court. There are also references to other “civil disputes”. Again, the particulars have not been provided. I thus decline the temptation to comment on the merits of the complaint by Samuel Gikandi or the counter positions by the applicants on who between them controls the company. 13.But I can safely state the following: It is apparent from the materials by both parties that there is a contest over the shareholding or dealings of the company. The DCI claims that it is actively investigating forgery, false accounting, fraudulent appropriation, theft, personation and unlawful erasure, distraction or alteration of personal data contrary to the Penal Code and the Data Protection Act. 14.It is important to emphasize that all those remain mere allegations for now. Paraphrased, under articles 49 and 50 of the Constitution, the applicants are still deemed innocent; and, are entitled to fair administrative action. 15.But in light of the serious allegations, it would not be right to stop the Inspector General of Police and the Director of Criminal Investigations from investigating the matters in question; or, to bar the Director of Public Prosecutions from bringing charges so long as all the offices are acting in the public interest and not abusing their powers. 16.The Inspector General of Police is clothed with a high level of independence. Article 245 (4) of the Constitution provides as follows-The Cabinet secretary responsible for police services may lawfully give a direction to the Inspector-General with respect to any matter of policy for the National Police Service, but no person may give a direction to the Inspector General with respect to— (a) the investigation of any particular offence or offences [Underlining added]. 17.Lastly I note that the respondents have deposed that they have no intention of arresting the applicants until their investigations are complete. I am accordingly not satisfied that the applicants face imminent arrest or detention. I thus decline to grant anticipatory bail or to issue a blanket order restraining the respondents from investigating the complaints against the applicants or the company. 18.The upshot is that the notice of motion dated 30th March 2026 is hereby dismissed.It is so ordered. DATED, SIGNED AND DELIVERED AT NAIROBI THIS 16TH DAY OF JULY 2026.KANYI KIMONDOJUDGERuling read virtually on Microsoft Teams in the presence of-Ms. Awino for the Republic instructed by the Office of the Director of Public Prosecutions.Mr. Khan for the applicants instructed by Khan & Associates advocates.Mr. Edwin Ombuna, Court Assistant.RULING Nbi Misc. Crim. Appl. No. E083 of 2026 Leah Mwenda & 3 others v Republic Page 2