Naituli v Director of Public Prosecutions & 4 others (Petition E206 of 2025) [2026] KEHC 12890 (KLR) (28 July 2026) (Judgment)

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT NAIROBI** **CONSTITUTIONAL AND HUMAN RIGHTS DIVISION** **PETITION NO. E206 OF 2025** **IN THE MATTER OF ARTICLES 2(1), 2(2), 3, 10, 10(2), 20(1)(2)(3)(4), 21(1), 23(1)(3), 24(1), 27(4), 28, 40, 47, 48, 50(9), 157(11), 165 AND 258(1) OF THE CONSTITUTION OF KENYA** **AND** **IN THE MATTER OF VIOLATION AND/OR INFRINGMENT OF THE PETITIONER’S CONSTITUTIONAL RIGHTS AND FREEDOMS UNDER ARTICLES 2(1), 2(2), 3, 10, 10(2), 20(1)(2)(3)(4), 21(1), 23(1)(3), 24(1), 27(4), 28, 40, 47, 48, 50(9), 157(11), 165 AND 258(1) OF THE CONSTITUTION OF KENYA** **AND** **IN THE MATTER OF ORDERS OF JUDICIAL REVIEW UNDER ARTICLE 22 ON ENFORCEMENT OF BILL OF RIGHTS, ARTICLE 23 ON AUTHORITY OF COURTS TO UPHOLD & ENFORCE THE BILL OF RIGHTS AND ARTICLE 47 ON FAIR ADMINISTRATIVE ACTION OF THE CONSTITUTION OF KENYA** **AND** **IN THE MATTER OF OFFICE OF THE PUBLIC PROSECUTIONS ACT CAP.6B** **BETWEEN** **KALIUTHA STANELY NAITULI .............................................................. PETITIONER** **VERSUS** **THE DIRECTOR OF PUBLIC PROSECUTIONS ...................................... RESPONDENT** **AND** **NELSON KINYUA INANGA .................................................. 1ST INTERESTED PARTY ABDI HASSAN IBRAHIM .................................................... 2ND INTERESTED PARTY ERIC KORIR ....................................................................... 3RD INTERESTED PARTY THE DIRECTOR CRIMINAL INVESTIGATIONS ........................4TH INTERESTED PARTY** **JUDGMENT** **INTRODUCTION** 1. The Petitioner, Kaliutha Stanely Naituli, moved this court by way of a Constitutional Petition dated 15th April 2025. He seeks a raft of declarations, the principal one being an order of certiorari to quash a decision of the Respondent, the Director of Public Prosecutions (DPP), communicated on 26th September 2024. By that decision, the DPP reversed his earlier concurrence with police recommendations and directed that criminal charges against the 1st, 2nd, and 3rd Interested Parties be deferred. The Petitioner contends that this reversal, communicated without any reference to him, violated his rights to fair administrative action and access to justice, among other constitutional guarantees. The Respondent and the 2nd Interested Party opposed the petition and filed an interlocutory application seeking to have the very letters forming the basis of the petition expunged from the record for being illegally obtained. **BACKGROUND** 1. The genesis of this dispute is a parcel of land, Ruiri/Rwarera/3999, located in Maili Tatu, within Ruiru area in the neighbouring County of Isiolo. The Petitioner claims that his family has occupied this land since 1984, developed it, and applied for its adjudication. In 2017, he discovered that the 2nd Interested Party, Abdi Hassan Ibrahim (now the Governor of Isiolo County), was claiming ownership of the land. An investigation by the 4th Interested Party, the Director of Criminal Investigations (DCI), allegedly revealed that the 1st, 2nd, and 3rd Interested Parties had conspired to fraudulently register the land in the name of the 2nd Interested Party. The investigation file, as seen in the annexure “KSN-1” which is the investigation officer’s report, recommended that the three Interested Parties be charged with conspiracy to defraud, forgery, and forcible detainer. 2. On 20th August 2024, the DPP concurred with this recommendation. This crucial concurrence is evidenced by the letter annexed to the Petitioner’s supporting affidavit and marked “KSN-2”. However, a mere 37 days later, the DPP dramatically reversed his position. By a letter dated 26th September 2024 (marked “KSN-3”), the DPP directed the DCI to defer the prosecution of the three Interested Parties pending the hearing and determination of a pending civil case, identified as Meru ELC Petition No. 3 of 2020, which also concerns the ownership of the same parcel of land. It is this reversal, which the Petitioner terms as whimsical and without any new evidence, that forms the bedrock of the instant petition. **THE PETITIONER’S CASE** 1. The Petitioner, acting in person, argues that the DPP’s decision to reverse his earlier directive without any reference to him or his family constitutes a gross violation of his constitutional rights. He asserts that having reported the fraud, being the complainant and the victim, he had a legitimate expectation to be informed of any major development in the prosecution process, especially one that was so manifestly adverse to his interests. 2. In his written submissions, the Petitioner forcefully contends that the DPP’s failure to inform him of the reasons for reversing the prosecution decision is a direct contravention of Article 47 of the Constitution and sections 3 and 4 of the Fair Administrative Action Act. He argued that the decision was not only procedurally unfair but also arbitrary, as no new or fresh evidence had emerged to justify such a swift reversal. 3. He further submitted that by stopping the prosecution, the DPP has effectively denied him access to justice, thereby violating Article 48 of the Constitution, and has ignored his rights as a victim of an offence under Article 50(9) as read with the Victim Protection Act. 4. On the issue of the admissibility of the contested letters, the Petitioner maintained that the letters formed part of the investigation file and were public documents accessible to any interested party, including himself, under Article 35 on the right to access to information. He even exhibited a WhatsApp exchange to demonstrate that the 2nd Interested Party himself was in possession of one of the letters, arguing that this put to rest any claims of illegal procurement. **THE RESPONDENT’S CASE AND SUBMISSIONS** 1. The Respondent, the DPP opposed the petition. The DPP’s primary argument was that the petition was founded on an erroneous understanding of his constitutional mandate under Article 157. He asserted that he possesses unfettered discretion to review investigation files, including the power to defer charges. The decision to defer, he argued, was not arbitrary but was a strategic and prudent exercise of public interest, intended to avoid parallel criminal and civil proceedings over the same subject matter. He submitted that this deferral was meant to allow the Environment and Land Court in Meru to first determine the fundamental question of ownership of Land Parcel No. Ruiri/Rwarera/3999, which would then inform the criminal process. 2. In a related but distinct strategy, the DPP also filed an application to have the very documents relied upon by the Petitioner, specifically the letters dated 20th August 2024 and 26th September 2024, and the police officer’s statement, expunged from the court record. The DPP argued that these documents were illegally obtained because the Petitioner failed to disclose their source as required under Order 19 rule 3 of the Civil Procedure Rules. He further contended that they were uncertified copies of public documents, contrary to sections 80 and 81 of the Evidence Act, and were confidential, leaked by a public officer in breach of the Public Officers Ethics Act. He relied heavily on the Supreme Court’s decision in ***Njonjo Mue & another v Chairperson of Independent Electoral and Boundaries Commission & 3 others [2017] eKLR****,* and the Court of Appeal’s decision in ***Okiya Omtatah Okoiti & 2 others v Attorney General & 4 others [2020] eKLR***, to argue that evidence obtained in a manner inconsistent with the Bill of Rights, and without following the proper procedure under the Access to Information Act, must be excluded. 3. The court was thus urged to decline to grant the prayers being sought in the instant Petition. **THE 2ND INTERESTED PARTY’S CASE** 1. The 2nd Interested Party, Abdi Hassan Ibrahim, filed a Replying Affidavit sworn on 16th May 2025. He echoed the DPP’s submissions, arguing that the petition was an abuse of the court process, as the core issue of land ownership was already pending before a court of concurrent jurisdiction in Meru ELC Petition No. 3 of 2020. He maintained that the DPP was well within his powers to defer the criminal case to avoid an embarrassing situation of conflicting findings. He also challenged the jurisdiction of this court, arguing that the petition did not meet the precision threshold set in***Anarita Karimi Njeru v Republic [1979] KLR 154****,* as it failed to clearly outline how his specific constitutional rights had been breached by him. **ANALYSIS AND DETERMINATION** 1. From the pleadings, affidavits, rival submissions, and the applicable law, the following three issues emerge for the just, expeditious, and final determination of this petition: 2. *Whether the documents annexed to the Petitioner’s supporting affidavit, specifically the investigating officer’s report (“KSN-1”), the DPP’s concurrence letter of 20th August 2024 (“KSN-2”), and the DPP’s deferral letter of 26th September 2024 (“KSN-3”), are admissible in these proceedings.* 3. *Whether the decision by the Director of Public Prosecutions, communicated on 26th September 2024, to defer the prosecution of the 1st, 2nd, and 3rd Interested Parties, and the manner in which that decision was made, violated the Petitioner’s constitutional rights, particularly his rights to fair administrative action under Article 47 and to access justice under Article 48.* 4. *Whether the Petitioner is entitled to the reliefs sought in his petition.* ***Whether the documents annexed to the Petitioner’s supporting affidavit, specifically the investigating officer’s report (“KSN-1”), the DPP’s concurrence letter of 20th August 2024 (“KSN-2”), and the DPP’s deferral letter of 26th September 2024 (“KSN-3”), are admissible in these proceedings.*** 1. The preliminary, but highly consequential, issue for my determination is whether the three impugned documents, the police officer’s report (KSN-1), the DPP’s concurrence letter of 20th August 2024 (KSN-2), and the DPP’s deferral letter of 26th September 2024 (KSN-3), are admissible in evidence. The Respondent and the 2nd Interested Party have mounted a strenuous challenge to the admissibility of these documents, arguing that they were illegally obtained by the Petitioner. The legal foundation for their challenge rests primarily on Article 50(4) of the Constitution, which provides that evidence obtained in a manner that violates any right or fundamental freedom in the Bill of Rights shall be excluded if the admission of that evidence would render the trial unfair or would otherwise be detrimental to the administration of justice. The Respondent also relies on procedural provisions, including Order 19 rule 3 of the Civil Procedure Rules, which requires a deponent to disclose the source of information, and Sections 80 and 81 of the Evidence Act, which require public documents to be certified. 2. The Petitioner, on his part, argues that the documents are admissible because they are public documents that form part of a criminal investigation file to which, as the complainant, he has a legitimate interest and a right of access to information under Article 35 of the Constitution. He further contends that the authenticity of the documents has never been disputed and that they were already in the public domain, as evidenced by the fact that the 2nd Interested Party himself was in possession of one of the letters and shared it on a WhatsApp platform. The court has carefully considered these rival arguments, the relevant statutory law, and the binding jurisprudence from the superior courts of this land. 3. A proper starting point is an appreciation of the evolution of the law on illegally obtained evidence in Kenya. At common law, the position was settled by the Privy Council in ***Kuruma, son of Kaniu v The Queen* [1955] AC 197**, for which the English case of***Reg. v Leatham (1861) 8 Cox C.C.C 498*** is often cited for the proposition that “it matters not how you get it, if you steal it even, it would be admissible in evidence.” This common law position, which focused exclusively on the relevance of the evidence and not on its method of acquisition, was the law in Kenya for decades. The Court of Appeal in ***Ombija v Judges and Magistrates Vetting Board [2015] KECA 129 (KLR)*** unequivocally affirmed that the test in both civil and criminal cases was whether the evidence was relevant to the matters in issue. The court held that if it was relevant, it was admissible, and the court would not be concerned with how it was obtained. 4. However, the promulgation of the Constitution of Kenya, 2010, fundamentally altered this legal landscape. The common law position, while still persuasive, must now yield to the supreme law. Article 50(4) represents a clear and deliberate departure from the old common law rule. It is a constitutional exclusionary rule that mandates a court to exclude evidence obtained in violation of the Bill of Rights if its admission would render the trial unfair or be detrimental to the administration of justice. The Court of Appeal, in ***Okiya Omtatah Okoiti & 2 others v Attorney General & 4 others [2020] eKLR***, citing the *Mue* decision with approval firmly laid to rest the idea that the Kuruma case is still good law in Kenya. In the above decision, the Court had the following to say; *“In the last-mentioned case, the Supreme Court of Kenya was invited to expunge certain documents in a presidential election petition. In its ruling, from which it is necessary to quote in extenso, the apex Court had this to say:“Having found that there are procedures provided for under the law through which any person who seeks to access information should follow, the question that follows is; what happens where a person ‘unlawfully’ or ‘improperly’ obtains any information held by an entity" Can a court of law admit such evidence…We also recognize that information held by the State or State organs, unless for very exceptional circumstances, ought to be freely shared with the public. However, such information should flow from the custodian of such information to the recipients in a manner recognized under the law without undue restriction to access of any such information… Further, a duty has also been imposed upon the citizen(s) to follow the prescribed procedure whenever they require access to any such information. This duty cannot be abrogated or derogated from, as any such derogation would lead to a breach and/or violation of the fundamental principles of freedom of access to information provided under*[*the Constitution*](https://new.kenyalaw.org/akn/ke/act/2010/constitution)*and the constituting provisions of the law. It is a two way channel where the right has to be balanced with the obligation to follow due process…"* *And later in the same case went on to say:* *“The Petitioners, using the above test, do not show how they were able to obtain the internal memos showing communication between employees of the 2nd Respondent. Further, it has been alleged that these memos have only been shown in part, and taken out of context to advance the Petitioners’ case against the 1st and 2nd Respondents, and to an extent, the 3rd Respondent. No serious answer has been given to that contention. The use of such information before the Court, accessed without following the requisite procedures, not only renders it inadmissible but also impacts on the probative value of such information. This is the point of divergence between the instant matter, and the case of Nicholas Randa Owano Ombija v. Judges and Magistrates Vetting Board (supra). In the present instance, there has been a clear violation of laid out procedures of law attributable to access of information, and violation of the rights of privacy and protection of property that the 2nd Respondent is guaranteed under*[*the Constitution*](https://new.kenyalaw.org/akn/ke/act/2010/constitution)*and Section 27 of the IEBC Act. This is because the limitation imposed by both Article 50(4) and Section 27 aforesaid squarely apply to the matter before us.”* *82.Although that decision was rendered in the context of a presidential election petition, it is clear from that decision that by dint of Article 50(4) of*[*the Constitution*](https://new.kenyalaw.org/akn/ke/act/2010/constitution)*, the adage, “it matters not how you get it if you steal it even, it would be admissible in evidence” is not representative of the state of the law in our legal system, irrespective of whether the dispute is of a criminal or civil nature.* *83.We reiterate that the appellants claimed to have been supplied with the contentious documents by “conscientious citizens” and “whistleblowers”. Based on the foregoing, the appellants ought to have requested the concerned Government Departments to supply them with the information they required, and to which they were entitled to receive in accordance with Article 35 of*[*the Constitution*](https://new.kenyalaw.org/akn/ke/act/2010/constitution)*. It was not necessary for the appellants to resort to unorthodox or undisclosed means to obtain public documents. If they deemed the documents were relevant (as indeed they were) then, they ought to have invoked the laid down procedure of production of documents….”* 1. The *Mue* case is, therefore, the guiding light on this issue. In that case, the Supreme Court was dealing with an application to expunge internal memos of the Independent Electoral and Boundaries Commission (IEBC) that had been obtained by the petitioners without following the prescribed procedure for access to information. The Court held that while Article 35 of the Constitution guarantees every citizen the right of access to information held by the State, this right is not absolute. It is a two-way channel. The Constitution imposes a duty on the State to provide information, but it also imposes a duty on the citizen to follow the prescribed procedure for accessing that information. The Court found that the petitioners had not shown how they had obtained the internal memos, and that there had been a clear violation of the laid-out procedures for access to information, which rendered the documents inadmissible. 2. Applying the principles from the *Mue* and *Omtatah* cases to the facts of this case, I must conduct a two-step inquiry. First, I must determine whether the impugned documents were obtained in a manner that violated a right or fundamental freedom. Second, if such a violation is found, I must determine whether the admission of the documents would render the proceedings unfair or be detrimental to the administration of justice. 3. On the first step, it is evident that the Petitioner did not obtain the letters from the ODPP through a formal request made under the Access to Information Act, No. 31 of 2016. Section 8 of that Act provides that an application to access information shall be made in writing to an information officer, who is then required to process the request within a specified timeframe. There is no evidence before me that the Petitioner made such a formal application. The Petitioner has also not disclosed, as required by Order 19 rule 3 of the Civil Procedure Rules, the exact source of the documents, simply stating in his supplementary affidavit that they “had formed part of the investigation file” and were “accessible to any interested party.” This lack of specificity is a concern. 4. However, the critical distinction between this case and the *Mue* case is the nature of the documents and the position of the person seeking to rely on them. The petitioners in *Mue* were third-party litigants seeking internal deliberative memos from the IEBC. In this case, the Petitioner is not a third party. He is the original complainant and the central victim of the alleged criminal fraud. The investigation file, including the police officer’s report (KSN-1), was generated as a direct result of *his* complaint. The DPP’s concurrence letter (KSN-2) and the deferral letter (KSN-3) are official communications about the disposition of *his* complaint. To my mind, the Petitioner is not a stranger to these documents; he is the very person whose interests they concern. The DPP’s attempt to paint these letters as “privileged and confidential” state secrets vis-à-vis the complainant is a strained argument that does not hold up to scrutiny. It defies logic to suggest that the DPP can make a final decision to halt a prosecution that affects a citizen’s fundamental right to property, and then turn around and shield that very decision from judicial scrutiny by claiming it is a privileged document that the citizen cannot see. 5. Furthermore, and most critically, the question of illegality in the procurement of the documents is substantially weakened by the fact that the authenticity of the documents is not in dispute. The DPP has not denied authoring the letters of 20th August 2024 and 26th September 2024. In fact, in its Statement of Grounds of Opposition, the DPP implicitly admits to their existence by defending the decision to defer charges as a lawful exercise of his mandate. The DPP cannot, on one hand, argue in its substantive opposition that the deferral of charges was lawful and justified, and on the other hand, argue in a preliminary application that the very evidence of that lawful deferral should be expunged for being unprocedurally obtained. This is an untenable, contradictory, and self-defeating position. As the Court of Appeal held in ***Nairobi City Council v Thabiti Enterprises Ltd Nairobi CA 264 of 1996***, a party cannot approbate and reprobate. The DPP cannot blow both hot and cold on the same facts. 6. In addition, the Petitioner has provided evidence, albeit in the form of a WhatsApp chat screenshot, that the 2nd Interested Party himself was in possession of the letter of 26th September 2024. The chat contains the message “Umetoa wapi hii bro ,umeona maneno sasa,” which translates to “Where have you gotten this bro, you have seen the issue now,” followed by a forward of the letter. This small piece of evidence is powerful. It demonstrates that once the letter left the ODPP and was transmitted to the DCI, it was no longer a confidential internal document. It was capable of being circulated, and indeed was circulated, among the very parties interested in the case. In ***Okoiti & 2 others v Attorney General & 7 others [2020] KECA 589 (KLR)***, the Court held that documents that are in the public domain, and whose authenticity is not contested, cannot be rendered inadmissible on the sole ground of an alleged irregularity in their procurement. The fact that the key letter was in the hands of the 2nd Interested Party, the person the Petitioner accuses of fraud, demolishes any claim that it was a stolen state secret. 7. Consequently, I find that the Petitioner has not committed a fundamental and unjustifiable violation of the Bill of Rights in obtaining the documents. Even assuming, for the sake of argument, that there was a technical breach of the Access to Information Act, this court must then proceed to the second step of the analysis under Article 50(4). Would the admission of these highly relevant documents, which go to the very heart of the Petitioner’s complaint, render the trial unfair or be detrimental to the administration of justice? The answer is an emphatic no. To exclude these documents would be to elevate procedural technicality over substantive justice. It would be profoundly detrimental to the administration of justice to blind this court to the very decision that the Petitioner seeks to challenge, simply because the DCI did not stamp a certificate on them or because the Petitioner did not pay the requisite fee for a formal copy. Article 159(2)(d) of the Constitution commands this court to administer justice without undue regard to procedural technicalities. I hold that the impugned documents are fully admissible, and the Respondent’s application to expunge them is hereby dismissed. ***Whether the decision by the Director of Public Prosecutions, communicated on 26th September 2024, to defer the prosecution of the 1st, 2nd, and 3rd Interested Parties, and the manner in which that decision was made, violated the Petitioner’s constitutional rights, particularly his rights to fair administrative action under Article 47 and to access justice under Article 48*** 1. Having cleared the evidentiary hurdle, I now turn to the substantive heart of the petition: whether the DPP’s decision to defer prosecution violated the Petitioner’s rights. The Petitioner alleges violations of Articles 47 (Fair Administrative Action) and 48 (Access to Justice), among others. The DPP, on his part, invokes his constitutional independence under Article 157 and argues that his decision is not subject to review on the grounds alleged. Resolving this contest requires this court to delicately balance two vital constitutional principles: the independence of prosecutorial power on the one hand, and the right of the citizen to procedural fairness and access to justice on the other. 2. Article 157 of the Constitution establishes the Office of the Director of Public Prosecutions as an independent, constitutional office. Article 157(10) is explicit: “*The Director of Public Prosecutions 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 direction or control of any person or authority*.” This provision is the cornerstone of the DPP’s independence. It is designed to insulate prosecutorial decisions from partisan political influence, executive interference, or private pressure. The courts have jealously guarded this independence. In ***Thuita Mwangi & 2 others v Ethics and Anti-Corruption Commission & 3 others [2013] eKLR***, the Court reiterated that the DPP has a broad discretion to determine whether to institute or withdraw criminal proceedings, and that courts should be slow to interfere with this discretion. In affirming this position, the Court stated as follows; *“The discretionary power vested in the Director of Public Prosecution is not an open cheque and such discretion must be exercised within the four corners of the Constitution. It must be exercised reasonably within the law and to promote the policies and objects of the law which are set out in Section 4 of the Office of Director of Public Prosecution Act. These objects are as follows: the diversity of the people of Kenya; impartiality and gender equity; the rules of natural justice, promotion of public confidence in the integrity of the office; the need to discharge the functions of the office on behalf of the people of Kenya, the need to serve the cause of justice; prevent abuse of legal process and public interest, protection of the sovereignty of the people; secure the observance of democratic values and principles and promotion of constitutionalism. The court may intervene where it is shown that the impugned criminal proceedings are instituted for other means other than the honest enforcement of criminal law, or are otherwise an abuse of the court process.”* 1. However, the constitutional independence of the DPP is not a license to act arbitrarily, capriciously, or in a procedurally unfair manner. The same Constitution that grants the DPP independence also guarantees every person, including the Petitioner, the right to administrative action that is lawful, reasonable, and procedurally fair under Article 47. The DPP’s decision-making process, while independent, is still administrative action and must meet the threshold of constitutionality. The Court, in ***Geoffrey K. Sang v Director of Public Prosecutions & 4 others [2020] KEHC 9213 (KLR)*,** held that while the DPP’s discretion is wide, it is not absolute and can be reviewed on grounds of illegality, irrationality, and procedural impropriety. The court’s power of judicial review extends to ensuring that the DPP has exercised his mandate within the four corners of the law, has considered all relevant factors, and has not made a decision that is so unreasonable that no reasonable decision-maker would have made it, following the classic principle from ***Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223.*** 2. In this case, the DPP made a decision to reverse his own previous concurrence within a span of thirty-seven days. The initial decision to prosecute, made on 20th August 2024, was presumably based on a full and thorough review of the investigation file, which contained damning evidence: the police report (KSN-1) showing that the ID number of the 1st Interested Party was fake, that the adjudication records showed a transfer eighteen years before the 2nd Interested Party began looking for land, and that the alleged donor of the land denied ever owning it. The principle of *stare decisis* or finality in decision-making is not a rigid one for the DPP, who retains the power to review his files. However, a dramatic reversal so soon after an initial decision, without any demonstration of new or fresh evidence, inevitably raises a legitimate concern about the process. 3. The DPP’s stated reason for the reversal is to “await the hearing and determination of the pending civil case, Meru ELC Petition No. 3 of 2020.” On the face of it, this is a plausible strategic consideration. There is no doubt that the civil case and the criminal case share a common factual matrix: the ownership of Land Parcel No. Ruiri/Rwarera/3999. The Environment and Land Court is a specialized court with jurisdiction to determine questions of title to land, and a definitive finding from that court would certainly be of great assistance to a criminal court. The DPP has a constitutional obligation under Article 157(11) to have regard to the public interest and the interests of the administration of justice. Avoiding a multiplicity of proceedings and the potential for contradictory findings is a legitimate exercise of this mandate. 4. The fatal flaw in the DPP’s action is not its substance, but its procedure. The manner in which the decision was made constitutes a clear violation of the Petitioner’s right to fair administrative action. The decision to reverse the prosecution was a decision that was manifestly adverse to the interests of the Petitioner. The Petitioner is not a mere bystander. He is the complainant, the alleged victim of a sophisticated land fraud. A decision to halt the criminal process means that the alleged fraudsters will not be held accountable through the criminal justice system for the foreseeable future. This directly and adversely affects the Petitioner’s interest in seeing justice done, recovering his property, and achieving a sense of closure. The DPP’s decision to defer is therefore, for all intents and purposes, a decision that has a direct and negative impact on the Petitioner. 5. In such circumstances, the cardinal principle of natural justice, *audi alteram partem* (hear the other side), is triggered. The Petitioner should have been given an opportunity to be heard before the DPP reversed his earlier decision. At the very least, he should have been informed that the DPP was considering deferring the case and given a chance to make representations on why the criminal case should proceed alongside the civil one. The DPP’s office, in his letter of 26th September 2024, did neither. The decision was made unilaterally, in a black box, without any form of engagement with the victim. In ***Onyango v Attorney General (1986-1989) EA 456***, the Court held that where an administrative decision is likely to adversely affect the rights or interests of a person, the decision-maker is obligated to give that person a hearing before the decision is made. This is the cornerstone of procedural fairness. The DPP’s failure to do so is not merely a technical oversight; it is a fundamental breach of the Petitioner’s rights under Article 47. 6. The violation of Article 47 is inextricably linked to a violation of Article 48, which guarantees the right of access to justice. Access to justice is not a passive concept. It is not simply the right to file a suit in court. As the Supreme Court stated in ***Aluochier v Independent Electoral and Boundaries Commission (IEBC) & 19 others [2013] KESC 13 (KLR)****,* access to justice is a broad and fundamental right that encompasses the right to a fair and effective process for the resolution of disputes. For a complainant in a criminal matter, access to justice includes the right to have his complaint investigated and, if a prima facie case is established, to have the matter prosecuted to its logical conclusion. The DPP’s decision to defer the prosecution, made without notice to the Petitioner, effectively blocks his path to the criminal justice system. While the Petitioner may still pursue his civil case, the criminal justice process is a distinct and equally important avenue for establishing culpability and securing a form of public justice. By unilaterally shutting that avenue, the DPP has impaired the Petitioner’s ability to access that specific form of justice. The delay inherent in awaiting a complex land adjudication case before the ELC could be substantial, and during that period, the alleged perpetrators of a criminal fraud may never be called to account. 7. The DPP argued that he has no legal obligation to consult a complainant before making a prosecutorial decision. That argument, taken to its extreme, would mean that the DPP could make any decision affecting a victim in complete secret, without any form of accountability. The court rejects that contention. The Constitution, which creates the ODPP, also creates the rights of citizens. The ODPP’s own policy framework, including the *National Prosecution Policy, 2019* and the *Guidelines on the Decision to Charge, 2019*, recognizes the importance of victims’ rights and the need to manage their expectations. While these policies do not create a legal right to veto a prosecution decision, they do underscore the necessity of a transparent and accountable process. A process where a complainant learns of a decision to halt his case only by stumbling upon a letter on a WhatsApp group, as appears to have happened here, is the very antithesis of the transparency and accountability required by Articles 10 and 232 of the Constitution. 8. In conclusion on this issue, I find that while the DPP had the substantive power to defer the prosecution in the public interest, the specific manner in which he exercised that power- by reversing an earlier decision without any notice or hearing to the adversely affected victim-complainant- was procedurally unfair and unreasonable. Consequently, the DPP’s action violated the Petitioner’s right to fair administrative action under Article 47 of the Constitution. The violation of this core right also, in the circumstances of this case, directly impaired the Petitioner’s meaningful access to the criminal justice system, thereby constituting a violation of his right to access justice under Article 48. ***Whether the Petitioner is entitled to the reliefs sought*** 1. Having found that the Petitioner’s constitutional rights under Articles 47 and 48 have been violated, the court must now consider the appropriate reliefs to grant. The Petitioner has sought a declaration of violation, an order of certiorari to quash the DPP’s letter of 26th September 2024, an order for compensation, general and exemplary damages, and the costs of the petition. The court will consider each category of relief in turn. 2. An order of certiorari is a powerful remedy that quashes a decision ab initio, as if it had never been made. The primary ground for certiorari is a want of jurisdiction, illegality, irrationality, or gross procedural impropriety. In this case, I have found that the DPP’s decision was procedurally flawed for want of fair hearing. However, I have not found that the substantive decision itself to defer the case was irrational or illegal. The DPP’s decision to await the outcome of the land dispute in the ELC has a rational basis. To quash the decision in its entirety would, therefore, be to throw the baby out with the bathwater. It would not serve any useful purpose, as the DPP would be free to make the exact same decision again, albeit now after giving the Petitioner a hearing. ***Halsbury’s Laws of England 4th Edn. Vol. 1(1)*** discusses that judicial review remedies are discretionary, and a court will not grant certiorari where the effect would be to grant a remedy that is futile or that would not restore the applicant to a better position than he was before. In this case, quashing the letter would not guarantee that the Petitioner would get his prosecution; it would only send the file back to the DPP for a fresh, but likely identical, decision after a mere formality of a hearing. 3. The more appropriate and surgical remedy is an order of mandamus. Mandamus compels a public body to perform a specific duty that it is obligated to perform but has failed to do. The duty that the DPP failed to perform was his duty to act with procedural fairness. An order of mandamus will therefore issue to compel the DPP to formally communicate to the Petitioner the reasons for his decision to defer the prosecution, to invite the Petitioner to make representations on that decision, and to consider those representations before making a final, conclusive determination on the fate of the criminal file. This remedy is tailored to cure the specific constitutional violation that occurred. It does not interfere with the DPP’s ultimate discretion to prosecute or not to prosecute; it merely ensures that when he exercises that discretion in a manner that is adverse to a citizen’s interests, he does so fairly and after hearing the citizen. 4. Regarding the prayer for compensation and exemplary damages for constitutional violations, this court exercises its discretion with caution. The award of damages for constitutional violations is not automatic. Damages under the Constitution are meant to vindicate a right and are not punitive. They are awarded where there is a clear and egregious violation that has caused the petitioner quantifiable loss or exceptional suffering. In this case, while the DPP’s action was procedurally flawed, it was not driven by malice or caprice, but by a legitimate, if poorly executed, public interest consideration. The Petitioner’s primary grievance is the loss of his land, which is a matter for the civil court. The constitutional violation here is procedural. The declaration of violation and the order of mandamus, which will compel a fresh, fair process, are sufficient vindication of the Petitioner’s rights. The court will therefore decline to award monetary compensation or exemplary damages. The primary relief a litigant in the Petitioner’s position should seek is to have the flawed process corrected, which this court has done. **CONCLUSION** 1. The long and the short of the foregoing analysis is that this petition partially succeeds. The court finds that the Director of Public Prosecutions, in exercising his constitutional mandate, acted in a manner that was procedurally unfair to the Petitioner by making an adverse decision to defer criminal charges without according him any form of hearing or notification. This was a violation of Article 47 of the Constitution and consequently impeded the Petitioner’s access to justice under Article 48. However, the court does not find the substantive decision to defer the charges to be unreasonable or illegal, and it will not issue an order of certiorari to quash it. The appropriate remedy is to compel a fairer process. 2. Consequently, I enter judgment in favour of the Petitioner on the following specific terms: 1. A Declaration be and is hereby issued that the Respondent, the Director of Public Prosecutions, violated the Petitioner’s right to fair administrative action guaranteed under Article 47 of the Constitution of Kenya, 2010, by failing to give him a hearing or to provide him with written reasons for his decision to reverse his earlier concurrence and defer the prosecution of the 1st, 2nd, and 3rd Interested Parties, as communicated in the letter dated 26th September 2024. 2. An Order of Mandamus be and is hereby issued compelling the Director of Public Prosecutions to, within thirty (30) days of the date of this judgment, formally notify the Petitioner in writing and provide him with a clear, comprehensive statement of the reasons for the decision to defer the prosecution in the matter concerning Land Parcel No. Ruiri/Rwarera/3999. The Director of Public Prosecutions shall further afford the Petitioner a reasonable opportunity, of not less than fourteen (14) days from the date of such notification, to file and serve any written representations he may wish to make on the said decision. 3. Upon receiving the Petitioner’s representations, or upon the expiry of the period for filing such representations, the Director of Public Prosecutions shall, within a further period of thirty (30) days, review his decision and communicate a final, conclusive determination on the fate of the criminal file to the Petitioner in writing. For the avoidance of doubt, the Director of Public Prosecutions retains his full constitutional discretion, under Article 157, to thereafter proceed with the prosecution, further defer it, or close the file, after duly considering the Petitioner’s representations. 4. The Respondent’s application to expunge the documents marked “KSN-1”, “KSN-2”, and “KSN-3” is hereby dismissed, and the said documents shall remain on the court record and have been fully considered in the determination of this petition. 5. Each party shall bear its own costs. Orders accordingly. File closed accordingly. **DATED, SIGNED AND DELIVERED VIRTUALLY THIS 28TH DAY OF JULY 2026.** **\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_** **BAHATI MWAMUY EMBS** **JUDGE**