Mweni & another v Director of Public Prosecutions & 9 others (Petition E072 of 2024) [2026] KEHC 10102 (KLR) (10 July 2026) (Judgment)

Mweni & another v Director of Public Prosecutions & 9 others (Petition E072 of 2024) [2026] KEHC 10102 (KLR) (10 July 2026) (Judgment) Neutral citation: [2026] KEHC 10102 (KLR) Republic of Kenya In the High Court at Mombasa Petition E072 of 2024 J Ngaah, J July 10, 2026 Between Elvis Ndoko Mweni 1st Petitioner Mourice Pole Tsuma 2nd Petitioner and The Director of Public Prosecutions 1st Respondent The Inspector General of Police 2nd Respondent The Attorney General 3rd Respondent The Chief Magistrate Mombasa 4th Respondent and Ahmed Naaman Muse 1st Interested Party Ali Khan Ali Muses 2nd Interested Party The County Commissioner, Kilifi South 3rd Interested Party The Chairman, Land Control Board, Kilifi South 4th Interested Party The Registrar Of Titles Mombasa 5th Interested Party The County Government Of Kilifi 6th Interested Party Judgment Introduction 1.This is a Petition dated 6th December 2024, amended on 19th December 2024, brought under Articles 22, 23 and 165(3)(b) and (d) of the Constitution. The Petitioners seek, in substance: (a) a permanent order of prohibition against the Respondents from prosecuting or continuing to prosecute them in Chief Magistrate's Court, Mombasa, Criminal Case No. E2027 of 2024; (b) a declaration that their arrest, charging and prosecution violate their constitutional rights; (c) a mandatory order directing the 1st and 2nd Respondents to surrender to the 6th Interested Party (the Registrar of Titles) certain titles and deed plans seized during investigation; (d) general and exemplary damages; and (e) costs. 2.The Petition is supported by the affidavit of the 1st Petitioner sworn on 6th December 2024 and a Supplementary Affidavit sworn on 10th April 2025. It is opposed by the 1st and 2nd Respondents, who rely on the Replying Affidavit of No. 241391 IP Stephen Agutu sworn on 17th December 2024 and written submissions dated 5th February 2026, and by the 2nd and 3rd Interested Parties, who each filed a Replying Affidavit sworn on 14th February 2025 in materially identical terms. 3.The dispute has its origin in a long-standing disagreement over occupation, survey, subdivision and titling of land known as Plot/L.R. No. 9/III/MN (also described as MN/111/9 and CR 5792) at Msumarini, Kikambala, Kilifi County — approximately 167 acres held under a Wakf Trust of which Abdulla Mohamed Ali Muse (now deceased), Ahmed Naaman Muse and Ali Khan Ali Muses are or were trustees. That underlying land dispute is also the subject of a pending suit, Malindi ELC No. E040 of 2023, in which a temporary injunction was granted to the plaintiffs (the 1st Petitioner and others) on 1st April 2025. The Petitioners' case 4.The Petitioners plead that their families have occupied portions of the suit land since 1932; that an agreement was reached with the trustees in 2013 to survey and subdivide the land to enable titling of the occupants' portions; that a joint survey and beaconing exercise was conducted on 11th August 2020 in the presence of the 1st Interested Party's predecessor, with an undertaking to grant consent to transfer; and that the 1st Interested Party (and his co-trustees) subsequently reneged on that undertaking. 5.They plead that a complaint of trespass lodged by the trustees in August 2022 was investigated and, by letter dated 17th August 2022, the 1st Respondent found the matter to be a boundary dispute properly resolved through the County Commissioner's office or a civil suit, and recommended no further police action. They plead that, on the same set of facts, the 1st Respondent reversed that position two years later, resulting in their arraignment on 2nd December 2024 in Criminal Case No. E2027 of 2024 on charges including conspiracy to defraud. They characterise this reversal as made in bad faith, at the instance of the trustees, and as an abuse of the prosecutorial process calculated to assist the trustees in the pending ELC suit rather than to serve any public interest. 6.In the Supplementary Affidavit, the Petitioners further contend that the investigating officer's own witness, Josphat Ngoma Matheka, corroborates the disputed 11th August 2020 meeting and minutes said to found part of the charge; and that the 1st Interested Party has sworn inconsistent accounts — disclaiming knowledge of the subdivision process in an affidavit filed in the ELC suit while acknowledging participation in it in his witness statement to the police. The Respondents' case 7.The 1st and 2nd Respondents rely entirely on the Replying Affidavit of the investigating officer, IP Stephen Agutu. That affidavit narrates a complaint received in February 2024 alleging fraudulent subdivision of the trust land without the trustees' consent; a Miscellaneous Application (No. E249 of 2024) through which fourteen deed plans and related documents were recovered; and a forensic examination in which a specimen signature of Ahmed Naaman was compared with the signature on the impugned subdivision-approval document, the Forensic Laboratory reporting that the two did not match. On the strength of that finding and other witness statements, the file was forwarded to the 1st Respondent, who found the Petitioners criminally culpable and confirmed the charges. 8.In their written submissions, the 1st Respondent contends that the reversal of the 2022 no-charge recommendation was lawful under Article 157(6), (10) and (11) of the Constitution and the ODPP Guidelines on the Decision to Charge (2019), the 2022 recommendation having been only a preliminary assessment overtaken by the subsequent forensic finding; that the pendency of the ELC suit does not bar prosecution under Section 193A of the Criminal Procedure Code; that the seizure of the title documents was a lawful investigative measure; and that the Petition does not meet the precision-pleading threshold established in Anarita Karimi Njeru v Republic (No.1) (1979) 1 KLR 154 and Mumo Matemu v Trusted Society of Human Rights Alliance, Civil Appeal No. 290 of 2012 (2013). The Interested Parties' case 9.The 2nd and 3rd Interested Parties (the surviving trustees) admit the descriptive and legal-foundation paragraphs of the Petition but deny in toto its factual narrative. They depose that the Petitioners are unknown to them and have never occupied the suit land; that they never agreed to any subdivision and were neither party nor privy to the 2013 agreement, the 2020 survey and beaconing, or the deed-plan and consent-to-transfer process; and that any subdivision that occurred was done without their consent and is therefore fraudulent. They confirm having lodged the August 2022 complaint, and state that police investigation independently found that the signature attributed to Ahmed Naaman on the subdivision approval was forged. They pray that the Petition be dismissed as frivolous, an abuse of process, and disclosing no prima facie case. Analysis and determination 10.It is well established that a person seeking constitutional redress must set out with reasonable precision the provisions said to be infringed and the manner of infringement. In Anarita Karimi Njeru v Republic (No.1) (1979) 1 KLR 154, the Court held:“We would, however, again stress that if a person is seeking redress from the High Court on a matter which involves a reference to the Constitution, it is important (if only to ensure that justice is done to his case) that he should set out with a reasonable degree of precision that of which he complains, the provisions said to be infringed, and the manner in which they are alleged to be infringed." 11.This standard was applied in Mumo Matemu v Trusted Society of Human Rights Alliance, Civil Appeal No. 290 of 2012 (2013), where the Court of Appeal found a petition wanting for failure to provide adequate particulars of the alleged constitutional violations, and further held, in respect of a challenge to the process preceding a decision to charge, that:“The applicable general principle is that there must be a showing of substantive defects in that procedure, or significant omissions, as to render it unconstitutional." 12.Applying this standard, I find that the instant Petition, read together with the Supporting and Supplementary Affidavits, does identify specific dates, correspondence, meetings and officers said to found the alleged violation — including the 17th August 2022 letter, the 11th August 2020 meeting and minutes, the specific deed-plan and title numbers, and the identity of the officer and witnesses said to demonstrate inconsistency in the investigation. This is not a petition of the generalised, unparticularised character condemned in Mumo Matemu or in the several authorities cited to like effect (see for instance the observations in Law Society of Kenya v Director of Public Prosecutions & 4 others (Petition 09 of 2019) (2025) KEHC 11980, dismissing a petition for being "generic, vague, ambiguous, filled with conjecture"). I therefore find that the Petition passes the Anarita Karimi Njeru threshold, and I decline to dispose of it on this preliminary ground alone. The 1st Respondent's objection on this score is accordingly not sustained, though, as will appear below, the want of a demonstrated nexus between the alleged ulterior motive and specific conduct remains relevant to the merits. 13.On the question of the prosecutorial discretion, Article 157(10) and (11) of the Constitution provide that the Director of Public Prosecutions shall not require the consent of any person or authority to commence proceedings and shall not be under the direction or control of any person or authority, but shall, in exercising these powers, 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. 14.The leading authority on the threshold for judicial interference is Justus Mwenda Kathenge v Director of Public Prosecutions, Attorney General & Chief Magistrate's Court, Nairobi [2014] KEHC 7714 (KLR), where Lenaola J (as he then was) held:“It is now trite that Courts cannot interfere with the exercise of the above mandate unless it can be shown that under Article 157(11): (i) he has acted without due regard to public interest, (ii) he has acted against the interests of the administration of justice, (iii) he has not taken account of the need to prevent and avoid abuse of Court process." 15.The same authority, however, makes plain that this deference is not absolute:“Whereas the DPP has the ultimate discretion in determining which complaint should lead to a criminal prosecution, where that power is seen to have been manifestly abused, the High Court can intervene by powers conferred by Article 165(3)(d)(ii) of the Constitution and stop that abuse, including where the Court system is being used to settle scores and to put an accused person to great expense in a case which is clearly not otherwise prosecutable." 16.The Court of Appeal in Diamond Hasham Lalji & another v Attorney General & 4 others (2018) KECA 856 (KLR) confirmed the measure of deference owed to prosecutorial discretion, while recognising the corresponding public interest in fair procedure:“Thus, the exercise of prosecutorial discretion enjoys some measure of judicial deference and as numerous authorities establish, the courts will interfere with the exercise of discretion sparingly and in the exceptional and clearest of cases... The society has an interest in both the lawful exercise of prosecutorial powers and in employing a fair procedure that does not amount to oppression and persecution." 17.In Peter Ngungiri Maina v Director of Public Prosecutions & 2 others [2017] eKLR, Ngugi J (quoting Odunga J) set out the categories in which the Court may properly intervene in the exercise of executive discretion, namely: abuse of discretion; exercise of discretion for an improper purpose; breach of the duty to act fairly; unreasonable failure to exercise statutory discretion; exercise in a manner that frustrates the purpose of the donating Act; fettering of discretion; failure to exercise discretion at all; and irrational or unreasonable decision-making. 18.I adopt these authorities as correctly stating the applicable threshold. The question, therefore, is not whether this Court would itself have charged the Petitioners on the material before the investigators, but whether the Petitioners have demonstrated that the 1st Respondent's decision falls into one of the recognised categories of abuse. 19.Regarding the issue whether the prosecution of the Applicants is for is an abuse of process serving a private purpose and for ulterior motive, it has been urged on behalf of the Petitioners that the prosecution is not a bona fide exercise of the DPP's mandate but a device by which the trustees, having failed to "disown" the subdivision process by other means, have enlisted the Respondents to assist them in the parallel civil dispute. This calls for close attention to the authorities on abuse of the criminal process in the context of what is, at root, a land dispute. 20.In Kuria & 3 Others v Attorney General [2002] 2 KLR 69, the High Court held:“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... The machinery of criminal justice is not to be allowed to become a pawn in personal civil feuds and individual vendettas." 21.Kuria also recognised, however, a competing public interest in the timely resolution of criminal allegations once made:“In the circumstances of this case it would be in the interest of the applicants, the respondents, the complainants, the litigants and the public at large that the criminal prosecution be heard and determined quickly in order to know where the truth lies and set the issues to rest, giving the applicants the chance to clear their names." 22.The Petitioners' argument finds its closest factual analogue in Republic v Chief Magistrate's Court at Mombasa Ex Parte Ganijee & Another [2002] 2 KLR 703, a decision of this Court (Waki J) concerning a land-related dispute in Kilifi in which the Attorney-General had advised against prosecution on the footing that the matter was civil, yet a private prosecution was later pursued on the same facts. The Court held:“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... 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." 23.Similarly, in Republic v Director of Public Prosecution & another Ex parte Joshua Kilonzo Mutisya [2018] KEHC 9885 (KLR), concerning a land dispute between brothers, the Court found the "belated involvement of the police in this purely civil dispute" to amount to an abuse of process; and in Jared Benson Kangwana & 2 others v Director of Public Prosecutions & 3 others [2022] KEHC 170 (KLR), the Court observed that a criminal prosecution is:“...always suspect of ulterior motive or improper purpose. Before instituting criminal proceedings, there had to be in existence material evidence based on which the prosecution could say with certainty that they had a prosecutable case. A prudent and cautious prosecutor had to be able to demonstrate that he had a reasonable and probable cause for mounting a criminal prosecution otherwise the prosecution would be malicious." 24.These authorities, taken together, establish that a change in position by a prosecuting authority on a matter previously treated as civil is not, of itself, unlawful; what renders it an abuse of process is the absence of any genuine evidentiary basis for the change, such that the true and predominant purpose can only be to advance a private civil cause. 25.This is the critical point of distinction on the facts before me. In Ganijee, no fresh evidence was shown to have emerged between the Attorney-General's advice against prosecution and the subsequent private prosecution on the same facts; the prosecution was, in substance, the same civil dispute re-litigated in a criminal forum. Here, by contrast, the 1st and 2nd Respondents rely on a specific and identifiable intervening development: a forensic examination, conducted after the 2022 recommendation, comparing a specimen signature of the 1st Interested Party with the signature borne by the impugned subdivision-approval document, and reporting a mismatch. Both the DCI's Replying Affidavit and the Interested Parties' Replying Affidavits converge on this finding. Whatever view is ultimately taken of its evidential weight, the existence of a forensic report not available in 2022 is, on its face, capable of constituting the kind of "material evidence" contemplated in Kangwana as distinguishing a legitimate reconsideration of a charging decision from a mere re-litigation of a civil dispute in criminal guise. 26.I have considered the Petitioners' contrary contention — that the forgery narrative is itself undermined by the statement of the 1st Respondent's own witness, Josphat Ngoma Matheka, said to corroborate the disputed meeting and minutes, and by an asserted inconsistency between the 1st Interested Party's ELC affidavit and his witness statement in the criminal file. These are serious matters going to the credibility and ultimate sufficiency of the prosecution's evidence. They are not, however, matters this Court can resolve on the affidavits before it without effectively conducting the trial that the Chief Magistrate's Court is seized to conduct. I address this further below. 27.As far as the pending suit, being Malindi ELC No. 040 I concerned, Section 193A of the Criminal Procedure Code addresses this question of civil cases and criminal cases running simultaneously; it provides as follows:“Notwithstanding the provisions of any other written law, the fact that any matter in issue in any criminal proceedings is also directly or substantially in issue in any pending civil proceedings shall not be a ground for any stay, prohibition or delay of the criminal proceedings." 28.In Alfred Lumiti Lusiba v Pethad Ranik Shantilal & 2 others [2016] eKLR, I held:“The conclusion that one can draw from Section 193A of the Criminal Procedure Code is that both civil and criminal jurisdictions can run parallel to each other and that neither can stand in the way of the other unless either of them is being employed to perpetuate ulterior motives or generally to abuse the process of the court in whatever manner." 29.In Gikonyo v Chief Magistrate's Court at Milimani & 8 others (Petition E23 of 2023) [2024] KEHC 11392 (KLR), the Court elaborated the factors relevant to this assessment: the commonality of issues raised in the two sets of proceedings, the timing of the petition relative to the civil suit, the legal effectiveness of both cases, the public interest, and whether the petitioner is intentionally creating an impediment to one or the other proceeding. 30.Taking the pronouncements made in these cases into account, I note that the ELC suit was filed in November 2023, before the charges in Criminal Case No. E2027 of 2024 were preferred in December 2024; there is undoubted commonality of the underlying facts. However, I am not satisfied that the mere timing betrays an intention on the part of the Respondents to use the criminal process to gain leverage in the civil suit, given the intervening forensic development addressed above. The ELC Ruling of 1st April 2025, while granting the plaintiffs (the Petitioners here) a temporary injunction on prima facie finding of occupation and "peaceful engagements" over subdivision, was decided on the different and lower threshold applicable to interlocutory injunctive relief, and did not purport to determine — nor could it, not being seized of the criminal file — the genuineness of the signature said to found the fraud charge. The two proceedings may properly run in parallel, and I decline to find that the pendency of the ELC suit renders the prosecution unconstitutional.Regarding the question on the viability of the prosecution case and it is sustainable based on the evidence gathered I would echo the decision in Republic v Commissioner of Police and Another ex parte Michael Monari & Another [2012] eKLR, where the Court held:“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." 31.This was elaborated in Daniel Odingi Ochwangi & another v Kenya Forest Services & another [2020] KEHC 9870 (KLR):“In considering the evidential test, the Court should only be satisfied that the evidence collected by the investigative agency upon which the DPP's decision is made establishes a prima facie case necessitating prosecution. At this stage the courts should not hold a fully-fledged inquiry to find if evidence would end in a conviction or acquittal." 32.Measured against this standard, it is possible that the material disclosed in the Replying Affidavit of IP Stephen Agutu — the recovery of the deed plans and related documents pursuant to court order, the specimen-signature comparison, and the forensic finding of a mismatch, may be a basis for establishing a prima facie case. Whether that forensic finding will withstand cross-examination; whether the Matheka statement in truth corroborates or undermines the charge relating to the 11th August 2020 minutes; and whether the 1st Interested Party's several accounts are reconcilable or fatally inconsistent, are all matters going to the weight and credibility of evidence that fall squarely within the province of the trial court, and it would be an impermissible usurpation of that court's function for this Court to resolve them at the constitutional-petition stage. This conclusion is consistent with the caution expressed in Diamond Hasham Lalji and in Justus Mwenda Kathenge against this Court descending into the merits of a criminal charge under the guise of constitutional review. 33.Regarding the complaint about seizure of documents, Article 245(2)(b) of the Constitution and Section 24 of the National Police Service Act mandate the 2nd Respondent to detect and investigate crime. In Daniel Ogwoka Manduku v Director of Public Prosecutions & 2 others (2019) KEHC 12121 (KLR), citing Isaac Tumunu Njunge v Director of Public Prosecutions & 2 others (2016) eKLR, the Court held that the police:“...are clearly mandated to investigate the commission of criminal offences and in so doing they have powers inter alia to take statements and conduct forensic investigations." 34.The seizure of the deed plans and titles from the 6th Interested Party's office was, on the material before me, undertaken pursuant to a court order (Miscellaneous Application No. E249 of 2024) in aid of investigating a suspected forgery, and was necessary to preserve the very documents whose authenticity is now in dispute in the criminal trial. I find nothing in this record to suggest the seizure was disproportionate, arbitrary, or a final rather than investigative deprivation of property. Should the prosecution not result in a conviction, or should the documents cease to be required for the purposes of the trial, the Petitioners and the 6th Interested Party retain the right to apply for their release in the ordinary way; that question does not, on the material before me, warrant the mandatory order sought in this Petition at this stage. 35.In conclusion, I hold that on the face of it, the Petition is pleaded with sufficient precision to meet the Anarita Karimi Njeru/Mumo Matemu threshold, and is not liable to be struck out on that ground. However, the Petitioners have not demonstrated that the 1st Respondent's decision to reverse the 2022 no-charge recommendation was made without due regard to the public interest, against the interests of the administration of justice, or without regard to the need to prevent abuse of the legal process, within the meaning of Article 157(11) and Justus Mwenda Kathenge; the intervening forensic finding provides an evidentiary basis for that reversal sufficient to distinguish this case from Ganijee, Kuria, Joshua Kilonzo Mutisya and Kangwana, in each of which no comparable fresh evidence was shown to exist; 36.I also hold that the pendency of Malindi ELC No. E040 of 2023 does not, on the authority of Section 193A of the Criminal Procedure Code, Alfred Lumiti Lusiba and Gikonyo, operate as a bar to the criminal prosecution, the two proceedings being capable of running in parallel absent a clearer showing of ulterior motive than has been made out here; 37.Subject to the trial court’s determination, the material before the investigators and the 1st Respondent was capable, applying Michael Monari and Daniel Odingi Ochwangi, of establishing a prima facie case; the Petitioners' challenges to the reliability of the forensic finding and to the consistency of the 1st Interested Party's accounts are properly matters for the trial court and are expressly reserved to the Petitioners to raise, and to be resolved, at trial; 38.The seizure of the title documents and deed plans was a lawful investigative measure under Article 245(2)(b) of the Constitution and Section 24 of the National Police Service Act, and does not on this record amount to an unconstitutional deprivation of property under Article 40. 39.For the reasons set out above, I decline to grant the orders sought. The Petition dated 6th December 2024, as amended, is accordingly dismissed. Parties will bear their respective costs. SIGNED DATED AND DELIVERED ON 10TH JULY 2026NGAAH JAIRUSJUDGE