https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12888

**REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NAIROBI CONSTITUTIONAL AND HUMAN RIGHTS DIVISION** **PETITION NO. E755 OF 2025** **IN THE MATTER OF ARTICLES 19, 20, 21, 22, 23, 24, 25, 27, 28, 31, 40, 47, 49, 50 & 165 OF THE CONSTITUTION OF KENYA, 2010 AND IN THE MATTER OF ENFORCEMENT OF FUNDAMENTAL RIGHTS AND FREEDOMS AND IN THE MATTER OF SECTIONS 4, 5, 7 AND 10 OF THE FAIR ADMINISTRATIVE ACTION ACT, 2015 AND IN THE MATTER OF THE OFFICE OF THE DIRECTOR OF PUBLIC PROSECUTIONS ACT, NO. 2 OF 2013 AND IN THE MATTER OF AN IMPENDING ARREST AND PROSECUTION ARISING FROM A DEFECTIVE AND MALICIOUS CHARGE SHEET** **BETWEEN** **JULIUS SIMIYU NAMUKHONDO..........................................................PETITIONER** **VERSUS** **ROSELYN ONYANGO WECHULI.....................................................1ST RESPONDENT THE DIRECTOR OF CRIMINAL INVESTIGATIONS (DCI)...................2ND RESPONDENT THE DIRECTOR OF PUBLIC PROSECUTIONS..................................3RD RESPONDENT THE HONOURABLE ATTORNEY GENERAL.....................................4TH RESPONDENT** **JUDGMENT** **INTRODUCTION** 1. The Petitioner, Julius Simiyu Namukhondo, instituted this constitutional petition dated 18th November 2025. He was erstwhile an employee of the 1st Respondent, Roselyn Onyango Wechuli, a fact that is not in dispute. The substratum of this dispute is the intersection, or more accurately, the collision between a concluded civil employment dispute and a subsequent criminal prosecution for forgery. The Petitioner seeks refuge under the Bill of Rights, contending that the looming criminal proceedings against him are a malicious afterthought, an abuse of the court process, and a tool of vengeance orchestrated by the 1st Respondent and facilitated by the 2nd and 3rd Respondents following an adverse civil judgment. The core question for this Court is whether the criminal process has been subverted from its legitimate purpose of law enforcement into an instrument of coercion and retribution. **BACKGROUND** 1. The factual genesis of this matter lies in an employment relationship. The Petitioner was employed by the 1st Respondent as a gardener under a contract dated 11th February 2023, with a monthly salary of Kshs.12,000. On 8th September 2023, a document titled "Change of Particulars on Contract" was issued, which purported to extend the Petitioner's contract and grant him an additional Kshs.2,000 per month due to the high cost of living. Following a suspension and subsequent dismissal, the Petitioner instituted a claim before the **Milimani Commercial Magistrates Court being MCELRC No. E378 of 2024,** seeking, among other reliefs, compensation for unfair termination. 2. The 1st Respondent entered appearance on 21st March 2024 and filed her response. Critically, in her witness statement dated 22nd July 2024, the 1st Respondent made a significant admission at paragraph 10: "As a good employee and due to high cost of living, I offered the Claimant an allowance of Kshs.2000 on top of what he was earning. This was not a salary increment." This admission, made under oath, confirms that the Petitioner was entitled to an additional Kshs.2,000 the very sum that is the subject of the forgery allegation. 3. The matter proceeded to full hearing. The Petitioner produced the disputed "Change of Particulars" document without objection from the 1st Respondent. Further corroborative evidence was adduced, including a text message from the 1st Respondent to the Petitioner dated 12th January 2024. In that message, the 1st Respondent tabulated the Petitioner's dues as follows: "December tabulation 14,000 Less Advance 4,500 Less penalty 2,455 Net balance 7,040 Sending to you." This communication, authored by the 1st Respondent herself, demonstrates that she was operationalizing a salary of Kshs.14,000, thereby affirming the substance of the disputed document. 4. On 10th September 2025, the learned trial magistrate delivered judgment in favour of the Petitioner, awarding him Kshs.90,219 for unfair termination. In her analysis, the magistrate specifically addressed the authenticity of the disputed document, holding that the burden of proof lay on the 1st Respondent who alleged forgery, and that this burden had not been discharged. The judgment was therefore a complete repudiation of the 1st Respondent's defence. 5. The sequence of events following this judgment is the crux of this petition. On 11th September 2025, the 1st Respondent filed an application seeking a 30-day stay of execution, citing a "cash crunch and financial difficulties." This application was, however, withdrawn on 29th October 2025, having delayed the execution process. 6. More critically, on 23rd September 2025, a mere 13 days after the adverse judgment, the 1st Respondent lodged a complaint at Kasarani Police Station, alleging that the Petitioner had forged her signature on the "Change of Particulars" document. This complaint was made over one year and six months after the document had first been served upon her in the civil suit. The investigating officer, SGT. Timothy Wanyonyi, then commenced an inquiry. Crucially, the Petitioner avers, and the record confirms, that he was never summoned for questioning, no written notice was issued to him as required by Section 52(1) of the National Police Service Act, and his side of the story was never recorded. 7. The police swiftly obtained a certified copy of the disputed document from the Milimani court and forwarded it to the DCI forensic document examiner on 30th September 2025. A forensic report was produced on 2nd October 2025, concluding that the signature and handwriting on the disputed document were made by different authors. This report, however, was based solely on photocopies of the document. The report did not include the crucial known specimen signatures ("B", "D", "G", "H") that it referenced for comparison, nor did it consider the original employment contract of 11th February 2023, which contains the 1st Respondent's undisputed signature and is temporally proximate to the disputed document. 8. On 12th November 2025, a charge sheet was prepared in **Makadara Criminal Case No. E5722 of 2025**, charging the Petitioner with the offence of Forgery Contrary to Section 345 as read with Section 349 of the Penal Code. Significantly, the particulars of the offence state that the forgery occurred on an "unknown date," despite the 1st Respondent’s complaint specifying the time and date. The Petitioner was never formally notified of this charge. He only became aware of its existence on 17th November 2025, when the 1st Respondent’s advocates annexed the charge sheet to "Further Submissions" filed in the already-concluded civil case, a procedurally irregular and abusive tactic. Faced with this imminent threat of arrest and prosecution, the Petitioner filed the instant petition on 18th November 2025. **THE PETITIONER’S CASE** 1. The Petitioner’s case, as presented in his petition, supporting affidavit, further affidavit, and written submissions, is that the criminal proceedings against him constitute a gross abuse of the court process. He contends that the prosecution is not a bona fide effort to enforce the criminal law but rather a malicious and retaliatory scheme by the 1st Respondent to intimidate him, frustrate the execution of the civil judgment, and collaterally attack the findings of the employment court. 2. The Petitioner submits that the investigative process was fatally flawed and violated his right to fair administrative action under Article 47 of the Constitution. He argues that he was never given an opportunity to be heard, no written summons was issued, and the investigators proceeded on a one-sided inquiry that ignored exculpatory evidence. He points to the 1st Respondent's own witness statement, where she admitted to granting him the Kshs.2,000 allowance, as well as her text message tabulating his salary at Kshs.14,000 as clear evidence that the document's substance was true. He argues that the timing of the complaint, coming so soon after the adverse judgment and after a significant delay from the document's first production, is a clear indicator of an ulterior purpose. 3. With respect to the forensic report, the Petitioner submitted that it is scientifically unsound and cannot form a rational basis for a prosecution. He relies on an independent forensic review report dated 11th December 2025, which highlights that a conclusive analysis of signature authenticity requires original documents to assess features like pen pressure, ink flow, and stroke direction, which are irretrievably lost in photocopies. The Petitioner also notes that the specimens referenced in the DCI report are missing, rendering the comparison itself an exercise in futility. 4. The Petitioner further argued that the charge sheet is constitutionally defective. By stating that the offence was committed on an "unknown date," the charge violates his right under Article 50(2)(b) to be informed of the charge with sufficient detail to prepare a defence. He contends that this ambiguity is not a mere technicality, as time is a material fact, and the failure to specify it prejudicially obscures the alleged act. 5. He also invokes the principle of issue estoppel, arguing that the issue of the document’s authenticity was conclusively determined by the civil court, and it would be an abuse of process to relitigate the same issue through the backdoor of a criminal prosecution. He places reliance on ***Vrajlal Kamani & 2 others [2015] eKLR***, where the court recognized issue estoppel can arise from a judicial determination of a fact in earlier litigation between the same parties. 6. The Petitioner submitted that the constitutional mandate of the Director of Public Prosecutions under Article 157 is not absolute. He draws this Court’s attention to the Supreme Court’s decision in ***Praxidis Namoni Saisi & 7 Others v Director of Public Prosecutions & 2 Others (SC Petition No. 39 of 2019) [2023] KESC 6 (KLR),***where the court affirmed that while the DPP is independent, the power must be exercised in accordance with public interest and the need to prevent abuse of the legal process. He argues that this case presents a classic scenario for judicial intervention, as the continued prosecution would be oppressive and vexatious. He therefore prays for a declaration that his rights have been violated, an order of certiorari to quash the charge sheet, an order of prohibition to restrain his arrest and prosecution, general and exemplary damages, and costs. **THE 1ST RESPONDENT’S CASE** 1. The 1st Respondent, Roselyn Onyango Wechuli, opposed the petition through a Replying Affidavit sworn on 2nd December 2025. Her case is that she acted lawfully and in good faith by reporting a suspected criminal offence to the police. She argues that during the hearing of the employment case, she disputed the authenticity of the "Change of Particulars" document, but the court noted she had not adduced evidence to prove the forgery. She contends that the police conducted their own independent investigations and found the document not to be genuine, culminating in the charge sheet. She maintains that she neither influenced the investigative process nor has any power to direct the 2nd and 3rd Respondents in their constitutional mandates. 2. The 1st Respondent dismisses the petition as a premature and unsubstantiated attempt to evade lawful criminal accountability. She argues that the filing of the petition immediately after the charge sheet was annexed to her review application is a clear indication that the Petitioner is seeking to frustrate the legal process. 3. It is the 1st Respondent’s submission that the Petitioner's claim that his constitutional rights are threatened is speculative, as lawful investigations and prosecution do not, in themselves, constitute a violation of rights. She asserts that if the Petitioner is eventually charged, he will be afforded all the due process rights guaranteed under the Constitution, including the right to a fair trial and disclosure of evidence. Consequently, she prays for the dismissal of the petition. **THE 2ND AND 3RD RESPONDENTS’ CASE** 1. The 2nd Respondent (the DCI) and the 3rd Respondent (the DPP), through their Replying Affidavit sworn by SGT. Timothy Wanyonyi on 10th December 2025 and their joint written submissions, defended the investigation and the decision to prosecute. Their primary argument is anchored on the constitutional and statutory independence of the Office of the Director of Public Prosecutions. They submit that under Article 157(6) and (10) of the Constitution, the DPP has the unfettered discretion to institute and undertake criminal proceedings without the direction or control of any person or authority. 2. The 2nd and 3rd Respondents argue that the police only need to establish a reasonable suspicion that an offence has been committed before preferring charges, citing the case of ***Republic v The Commissioner of Police & the Director of Public Prosecution Ex parte Michael Monari & Another (Misc. Application No. 68 of 2011).*** 3. They contend that the investigation was thorough and independent. The investigating officer detailed the steps taken, including recording the complainant's statement, obtaining a certified copy of the document from the court, forwarding it to the forensic document examiner, and attempting to locate the Petitioner, albeit unsuccessfully. 4. It is their submission that the decision to charge was based on the evidential test under the National Prosecution Policy, where they objectively assessed the evidence and formed the opinion that it established a realistic prospect of conviction. They downplay the procedural deficiencies, suggesting that a phone call was made to the Petitioner, and their inability to locate him justified proceeding without his statement. 5. According to 2nd and 3rd Respondent, the Petitioner’s right to a fair trial under Article 50 is not absolute and will be vindicated during the trial process, where he will have the opportunity to challenge the evidence against him, including the forensic report. 6. It is their case that the Petitioner has failed to demonstrate with the required precision how his enumerated rights have been violated, as required by the principle in ***Anarita Karimi Njeru v Republic [1979] KLR 154***. They therefore urge the Court to dismiss the petition as frivolous and an abuse of the court process. **THE 4TH RESPONDENT’S CASE** 1. The Honourable Attorney General, as the 4th Respondent, did not file any substantive pleadings or submissions. 2. In line with the principle that a party who fails to respond is deemed not to controvert the facts pleaded, the Court will consider the arguments of the Petitioner as unopposed with respect to the 4th Respondent. **ANALYSIS AND DETERMINATION** 1. Having carefully considered the petition, the voluminous affidavits, the rival written submissions, and the various judicial authorities cited, the following issues crystallize for determination by this Court: 2. ***Whether the Petitioner has met the threshold for the grant of conservatory or prohibitory orders to halt the criminal proceedings, given the principle that judicial review and constitutional intervention in pending criminal cases is an exceptional remedy.*** 3. ***Whether the initiation of criminal proceedings against the Petitioner violated his right to fair administrative action under Article 47 of the Constitution and the Fair Administrative Action Act, particularly in light of the one-sided and procedurally flawed nature of the police investigation.*** 4. ***Whether the decision by the 3rd Respondent to approve and prefer charges based on the available evidence, including the DCI forensic report, was irrational, unreasonable, and an abuse of prosecutorial discretion, thereby violating the Petitioner’s right to equality and freedom from discrimination under Article 27.*** 5. ***Whether the criminal proceedings, given their timing immediately following an adverse civil judgment and the 1st Respondent’s own admissions, are an abuse of the court process, instituted for a collateral purpose, and therefore violate the Petitioner’s right to human dignity under Article 28 and his right to a fair hearing under Article 50.*** 6. ***Whether the Petitioner is entitled to the reliefs sought, including the quashing of the charge sheet, an order of prohibition, and constitutional damages.*** **Whether the Petitioner has met the threshold for the grant of conservatory or prohibitory orders to halt the criminal proceedings, given the principle that judicial review and constitutional intervention in pending criminal cases is an exceptional remedy** 1. Before embarking on a substantive analysis of the Petitioner's grievances, this Court must first address the threshold for intervention in pending or impending criminal proceedings. It is a well-entrenched principle of our constitutional jurisprudence that the High Court ought not to lightly interfere with the constitutional mandate of the Director of Public Prosecutions to institute and undertake criminal proceedings. An order of prohibition is an order that forbids an inferior tribunal from continuing proceedings in excess of its jurisdiction or in contravention of the laws of the land. However, the court is not to issue such an order to correct a wrong decision on the merits of proceedings. The power is reserved for situations where the proceedings amount to an abuse of the court process, are oppressive or vexatious, or are being conducted in bad faith. 2. The Petitioner is not challenging the sufficiency of the evidence against him *per se*, which would be the proper province of the trial court. Instead, he mounts a frontal attack on the very legality and rationality of the decision-making process that led to the charges. He argues that the prosecution is a nullity from its inception. 3. In ***Saisi & 7 others v Director of Public Prosecutions & 2 others (supra)*** the Supreme Court of Kenya provided a clear articulation of the circumstances warranting judicial intervention. The apex court held that the High Court may, in the exercise of its supervisory jurisdiction under Article 165(3)(d)(ii), interrogate a decision of the DPP where it is shown that the expectations of Article 157(11) have not been met. The court specifically stated that intervention is justified where the institution or continuance of criminal proceedings would amount to an abuse of the court process or where the quashing of the impugned proceedings would secure the ends of justice. 4. The Petitioner further invokes Article 47 of the Constitution on fair administrative action. The nature of a decision to investigate and prosecute is an administrative action that must be lawful, reasonable, and procedurally fair. As held by the Court of Appeal in ***Suchan Investment Limited v Ministry of National Heritage & Culture & 3 others [2016] KECA 729 (KLR)****,* the codification of judicial review in the Constitution and the Fair Administrative Action Act has shifted the process from a purely common law exercise to one that may entail a limited measure of merits analysis to determine if the decision was reasonable. Therefore, this Court is not merely a passive observer of the criminal process. It has a constitutional duty to ensure that the power to prosecute is not transformed into an instrument of oppression. 5. In the instant case, the Petitioner has laid a factual foundation that goes beyond mere suspicion of malice. He has placed before this Court a prima facie case that the investigation was conducted in a procedurally unfair manner, that critical exculpatory evidence was disregarded, and that the timing of the complaint points squarely to a retaliatory motive. In my considered view, this is precisely the kind of exceptional scenario contemplated by the Supreme Court in the ***Saisi***case, where judicial intervention is necessary to protect the integrity of the judicial process and prevent an irremediable violation of the Petitioner’s constitutional rights. The jurisdiction to intervene is therefore properly invoked. 6. It is important to emphasise that the jurisdiction exercised by this Court is not one of determining the criminal culpability or otherwise of the Petitioner. The Court does not purport to substitute itself for the trial court, nor does it evaluate the ultimate credibility of witnesses or the weight to be attached to evidence that may be adduced at trial. The question before this Court is whether, considering the totality of circumstances, the decision to subject the Petitioner to the criminal process was arrived at in a manner consistent with the Constitution, the law, and the legitimate purposes of criminal justice. Where the criminal process itself becomes the instrument of injustice, the Court has both the jurisdiction and the duty to intervene. **Whether the initiation of criminal proceedings against the Petitioner violated his right to fair administrative action under Article 47 of the Constitution and the Fair Administrative Action Act, particularly in light of the one-sided and procedurally flawed nature of the police investigation** 1. The Petitioner’s claim under Article 47 of the Constitution is most compelling. Article 47(1) guarantees every person the right to administrative action that is expeditious, efficient, lawful, reasonable and procedurally fair. Section 4(3) of the Fair Administrative Action Act (FAAA) operationalizes this right by mandating that an administrator, before taking any administrative action that is likely to adversely affect the rights of a person, must give the person prior and adequate notice of the nature and reasons for the proposed action, an opportunity to be heard, and a notice of the right to a review or appeal. 2. The investigative process led by the 2nd Respondent was the quintessential administrative action that was likely to, and in fact did, adversely affect the Petitioner’s rights. It culminated in a criminal charge that threatens his liberty. Procedural fairness demanded that the Petitioner be involved. The investigating officer, SGT. Wanyonyi, avers that he went to the Petitioner’s housing complex in Kawangware but did not find him. He then claims to have made a phone call to the Petitioner. Even accepting these averments as true, they fall woefully short of the standard of procedural fairness contemplated by the Constitution and the FAAA. Section 52(1) of the National Police Service Act is explicit on this matter: *"A police officer may, in writing, require any person whom the police officer has reason to believe has information which may assist in the investigation of an alleged offence to attend before him at a police station or police office in the county in which that person resides or for the time being is."* 1. The law requires a summons in writing. A police officer making a single telephone call to a former employee who is legally represented in a related civil matter cannot, with respect, be considered a reasonable effort to afford him a hearing. The duty to act fairly is a positive duty on the part of the state. The investigative agency was aware of the Petitioner’s advocates, as they were on record in the civil case. A simple communication to that firm would have secured the Petitioner’s cooperation. The failure to make any meaningful effort to obtain the Petitioner's explanation, particularly in circumstances where the Petitioner was identifiable, legally represented in the related proceedings, and the complaint involved a document whose authenticity and circumstances of creation were contested, rendered the investigative process materially one-sided. 2. The Respondents’ investigation was not merely procedurally deficient; it was also substantively unreasonable. They had in their possession, or should have had, the entire record of the civil suit. That record contained the 1st Respondent’s own witness statement dated 22nd July 2024, in which she stated under oath, "*I offered the Claimant an allowance of Kshs. 2000 on top of what he was earning*." It also contained the text message she sent to the Petitioner on 12th January 2024, a contemporaneous piece of evidence that proves the Petitioner was being remunerated at the rate of Kshs.14,000.00, which is precisely the salary reflected in the disputed document. Any reasonable investigation into a complaint of forgery regarding that Kshs.2,000.00 increment would be bound to unearth these glaring contradictions. The fact that the 1st Respondent's statement was an admission, not a denial, of the economic substance of the document should have raised a red flag. A genuine investigation would have required the police to present this contradictory evidence to the Petitioner and ask for his explanation. Instead, the investigators appear to have accepted the 1st Respondent’s post-judgment narrative at face value and actively ignored the documentary evidence that contradicted it. 3. The Court is not persuaded by the Respondents' contention that these matters were issues exclusively reserved for trial. The existence of contradictory material does not prevent prosecution, but it imposes upon investigators and prosecutors a constitutional obligation to interrogate such contradictions honestly and objectively. A prosecution decision cannot be sustained where material evidence capable of undermining the complaint is ignored or deliberately sidelined. 4. The decision of the Court of Appeal in ***Commissioner of Police & Director of Criminal Investigations Department & another v Kenya Commercial Bank Ltd & 4 others [2013] eKLR*** is highly instructive. The court held that while the police have a prerogative to investigate crime, that power must be exercised responsibly, in accordance with the law, and in good faith. The court warned against the use of the criminal justice process as a pawn in civil disputes, deeming it unconscionable and a travesty of justice. The Court had the following to say: ***“Clearly, the company and the guarantor through their directors were employing criminal process to assist them in resolving their civil dispute. While the law (Section 193A of the Criminal Procedure Code) allows the concurrent litigation of civil and criminal proceedings arising from the same issues, and while it is the prerogative of the police to investigate crime, we reiterate that that power must be exercised responsibly, in accordance with the laws of the land and in good faith. What is it that the company was not able to do to prove its claim against the bank in the previous and present civil cases that must be done through the institution of criminal proceedings? It is not in the public interest or in the interest of the administration of justice to use criminal justice process as a pawn in civil disputes. It is unconscionable and a travesty of justice for the police to be involved in the settlement of what is purely a civil dispute being litigated in court. This is a case more suitable for determination in the civil court where it has been since 1992, than in a criminal court. Indeed, the civil process has its own mechanisms of obtaining the information now being sought through the challenged criminal investigations. We have no doubt in our minds that the belated involvement of the police in this purely civil dispute is an abuse of their power. The police should direct their energies and resources to prevention of crime which we all know is rampant in this country and is about to get out of control.”*** 1. The investigative approach adopted by the 2nd Respondent here fails the test of rationality. By proceeding with a one-sided inquiry that excluded the Petitioner and ignored the contradictory evidence, the investigators did not merely make a tactical error; they conducted an investigation that was so manifestly unfair as to be rendered a nullity. Consequently, the investigation and the decision to charge that flowed from it are vitiated by a violation of the Petitioner’s right to fair administrative action under Article 47 of the Constitution. **Whether the decision by the 3rd Respondent to approve and prefer charges based on the available evidence, including the DCI forensic report, was irrational, unreasonable, and an abuse of prosecutorial discretion, thereby violating the Petitioner’s right to equality and freedom from discrimination under Article 27.** 1. The decision by the 3rd Respondent, the Director of Public Prosecutions, to approve the charge sheet must be assessed against the constitutional threshold established under Article 157(11). In exercising prosecutorial powers, the DPP is required to consider the public interest, the interests of the administration of justice, and the need to prevent and avoid abuse of the legal process. This obligation demands an independent, careful, and rational evaluation of the material presented before him. The DPP’s constitutional mandate does not permit the mere adoption or endorsement of recommendations made by investigative agencies without independent scrutiny. 2. Article 157(11) therefore operates as a substantive limitation on prosecutorial discretion. While Article 157(10) guarantees the independence of the office of the Director of Public Prosecutions, that independence does not place prosecutorial decisions beyond constitutional review. Independence protects the DPP from external interference; it does not relieve the office of the obligation to demonstrate that decisions to prosecute are grounded in a proper consideration of the relevant material and consistent with the constitutional purposes set out in Article 157(11). Accordingly, where the decision to charge is based on an incomplete evidential foundation, or where material exculpatory matters are disregarded without justification, the constitutional standard is not met. 3. In the present case, the DPP’s decision was founded upon an investigative record that was materially defective. The charge approval relied on a forensic report whose methodology raised significant and unresolved concerns. Although the report was prepared by CI Meshack Maxwell Ganda, a qualified document examiner, the examination was conducted using photocopies of the disputed document because the original document was never obtained. 4. The Petitioner has produced a Forensic Document Examination Review Report prepared by his expert and, further, relied on the article titled “A Study on Signature Distortion in Photocopying Generations” published in the Journal of the American Society of Questioned Document Examiners. The academic literature demonstrates that essential handwriting characteristics, including pen pressure, ink flow, stroke direction, hesitation marks, and indentations, cannot be reliably evaluated from photocopies. These are precisely the features the DCI examiner identified as informing his conclusion, including initial and terminal strokes, baseline alignment, pen movement, pen lifts, and pen pressure patterns. The article further notes that distortion increases substantially after successive photocopy generations, creating a heightened risk of inaccurate interpretation. 5. In those circumstances, the DPP was required to critically interrogate the reliability of the forensic material before authorising prosecution. The failure to address the limitations arising from the absence of the original document rendered the decision-making process inconsistent with the constitutional obligation to ensure that prosecutorial power is exercised in the public interest, in the interests of justice, and without permitting abuse of the legal process. 6. The DPP's decision must also be examined against the quality and limitations of the forensic material relied upon. The issue before this Court is not whether the forensic opinion will ultimately be accepted or rejected by the trial court. Rather, the question is whether it was rational and lawful for the prosecution to treat that opinion as conclusive while failing to address its apparent limitations and the contradictory material available on record. More fundamentally, the report is incomplete. It refers to comparison specimens marked "B," "D," "G," and "H," but these crucial documents were not annexed to the report filed in court. An opinion on authorship of a signature is only as good as the quality and relevance of the known specimens used for comparison. Without these specimens, the Court cannot even assess whether a proper comparison was conducted. This is not a mere technical lapse; it goes to the very foundation of the decision to prosecute. 7. Furthermore, the decision to prosecute was irrational because it ignored the overwhelming exculpatory evidence that was already in the public domain through the civil court file. The 1st Respondent’s own witness statement was a powerful exculpatory piece of evidence, as it admitted to granting the very allowance that is the subject of the forgery allegation. In law, the essence of forgery is the making of a false document with intent to deceive or defraud. If the underlying fact stated in the document (the Kshs.2,000.00 increment/allowance) is true and was admitted to by the alleged victim, then the rationale for a criminal prosecution collapses. A prosecution in the face of such evidence is not an exercise of lawful discretion; it is an act of oppression. The DPP has a duty, as part of the evidential test, to consider the defence case. As stated in the English case of ***R v Manning [2001] QB 330***, there must be a "realistic prospect of conviction." In light of the 1st Respondent’s admissions and the corroborative text message, no reasonable prosecutor could conclude that a conviction was a realistic prospect. The decision to charge was therefore irrational and in violation of the principle of equality before the law under Article 27, as the Petitioner has been singled out for differential and punitive treatment without any objective justification. **Whether the criminal proceedings, given their timing immediately following an adverse civil judgment and the 1st Respondent’s own admissions, are an abuse of the court process, instituted for a collateral purpose, and therefore violate the Petitioner’s right to human dignity under Article 28 and his right to a fair hearing under Article 50.** 1. The timing of the criminal complaint is the most damning piece of evidence against the Respondents’ claim of a good-faith prosecution. The disputed document was served upon the 1st Respondent in March 2024. The civil suit was litigated for over a year. The 1st Respondent had every opportunity to report the matter to the police at any point during that time if she genuinely believed a crime had been committed. She chose not to. It was only after the judgment was delivered against her on 10th September 2025, and after her application for a stay of execution was pending, that she rushed to Kasarani Police Station on 23rd September 2025. The temporal proximity between the adverse civil judgment and the criminal complaint is sufficiently striking to require careful constitutional scrutiny; it is a clear and compelling indicator of an ulterior motive. 2. The criminal complaint was not made to vindicate the public interest in punishing crime. It was made as a strategic weapon to be used in the parallel civil proceedings. This is confirmed by the fact that the 1st Respondent did not wait for the police to conclude their investigations before using the fruits thereof. On 15th October 2025, she filed an application for review of the civil judgment, annexing the DCI forensic report as "new and important evidence." The criminal investigation, which had been triggered by her own complaint, was thus deployed as a collateral tool to attack the finality of the civil judgment. The 1st Respondent and her advocates went even further. On 17th November 2025, even before the Petitioner was formally notified of the charge, they annexed the charge sheet itself to "Further Submissions" filed in the concluded civil case. This was a flagrant abuse of procedure, as evidence is not introduced through submissions. Its predominant purpose was to prejudice the mind of the trial magistrate who was yet to rule on the review application. 3. This Court condemns this practice in the strongest possible terms. The criminal justice system is not a private debt collection agency nor a tool to be wielded in civil feuds. In ***Republic v Chief Magistrate’s Court at Mombasa Ex Parte Ganijee & another [2002] KEHC 1120 (KLR)***, the court stated with clarity that no one is allowed to use criminal proceedings to interfere with a fair civil trial. The court further held that if the object of a party is to overawe the respondent by "brandishing at him the sword of punishment," such an object is unworthy of countenancing. The Court specifically stated as follows: ***“I have carefully gone through the voluminous material placed before me on both sides. I have also considered the submissions of counsel. Upon going through the material, it seems to me that the two friends turned foes are substantial men of commerce who were dealing in high-stakes business transactions involving millions of shillings. One may therefore be excused for expressing some skepticism on allegations that one of the parties was led by the nose by the other in those transactions. The Interested Party in particular appears to cast himself in this light when he concedes that he guaranteed some loans and was induced to execute some securities without knowing or finding out some crucial but basic details.*** ***The procedure adopted for instituting the private criminal prosecution apart, I think the crucial decision to make is whether the prosecution is bona fide. The purpose of a criminal prosecution was aptly put forth by my brother Kuloba, J., in the Saina case and I may quote him as I cannot improve on his flowery turn of phrase:*** ***“So, it is not the purpose of a criminal investigation or a criminal charge or prosecution, to help individuals in the advancement of frustration 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 and ulteriorpurpose. 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. 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 court, oppressive or vexatious, prohibition and/or certiorari will issue and go forth.”*** ***In the Knassiuma case I relied on the Ugandan case of Kigorogolo vs Ruesherika, [1969] EA 426:-*** ***“When a remedy is elsewhere provided and available to a person to enforce an order of a civil court in his favour, I see 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 there under, such an object is unworthy to say the least and cannot be countenanced by this court.”*** ***It seems to me, whichever way I look at it, that the Interested Party in this matter 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 fully alive to Section 193A of the Criminal Procedure Code, which permits concurrent civil and criminal proceedings founded upon the same facts. The present decision does not rest upon the mere coexistence of civil and criminal proceedings. Rather, it rests upon the exceptional facts of this case, namely the chronology of events, the investigative omissions, the apparent failure to consider material exculpatory evidence, and the use made of the criminal process immediately following an adverse civil judgment. It is the cumulative effect of those circumstances, and not the existence of parallel proceedings, that justifies constitutional intervention. 2. The use of the criminal process in this manner has directly violated the Petitioner’s right to human dignity under Article 28 of the Constitution. He has been branded a forger and subjected to the ignominy and anxiety of criminal proceedings. His right to a fair hearing under Article 50(1) has also been compromised, not by the trial court, but by the extra-judicial conduct of the 1st Respondent and the investigative agencies who allowed themselves to be used as instruments of her vengeance. The fact that a court of law has, in the civil proceedings, already determined that the allegation of forgery was not proved, only to have the same issue resurrected as a criminal charge, makes a mockery of the principle of judicial finality. While Section 193A of the Criminal Procedure Code permits concurrent criminal and civil proceedings, it does not permit criminal proceedings to be instituted for the sole purpose of subverting a concluded civil judgment. 3. The Petitioner’s argument regarding the defective nature of the charge sheet is not a minor quibble; it strikes at the heart of his right to a fair trial. Article 50(2)(b) of the Constitution provides that every accused person has the right to be informed of the charge with sufficient detail to answer it. Section 134 of the Criminal Procedure Code reinforces this, requiring that a charge sheet contain a statement of the specific offence or offences with which the accused is charged, together with such particulars as may be necessary for giving reasonable information as to the nature of the offence. 4. The charge sheet in **Makadara Criminal Case No. E5722 of 2025** charges the Petitioner with forgery. The particulars state that the offence was committed on an "unknown date." However, the original complaint lodged by the 1st Respondent at Kasarani Police Station, a copy of which is in the court record (Page 6 of the Replying Affidavit), specifies the date and time of the alleged offence as "2025-09-23 1510 Hrs." The complainant provided a specific date. The police, in drafting the charge sheet, plead uncertainty. This is a material contradiction. Time is a critical element of a criminal offence. An accused person cannot be expected to mount a defence, such as an alibi, if the prosecution cannot fix the date of the alleged act. This defect is not curable under Section 382 of the Criminal Procedure Code, which deals with errors in proceedings, as it is a fundamental defect in the framing of the charge itself. 5. The failure to include a specific date, despite the complainant having provided one, strongly suggests a reckless and careless approach to the prosecution. It also raises the spectre of the prosecution seeking to unfairly broaden the scope of the charge to cover any period during which the document was in existence. This defect, when viewed together with the procedural irregularities already identified, reinforces the conclusion that the decision to prosecute was undertaken without the constitutional rigour demanded by Articles 47 and 157(11). alone is a sufficient ground for this Court to exercise its supervisory jurisdiction to quash the charge sheet, as it offends the constitutional guarantee of a fair trial. **CONCLUSION** 1. The constellation of factors in this case paints a disturbing picture of an abuse of state machinery. A civil dispute over the terms of employment for a gardener was fully and fairly adjudicated. The employer lost. Unable to accept this outcome, the employer cynically invoked the criminal law, not to serve the public good, but to harass, intimidate, and extract revenge upon a successful litigant. The police and the prosecution, unfortunately, failed in their constitutional duty to act as a neutral and impartial buffer between private vengeance and state power. They adopted the complainant’s narrative wholesale, conducted a procedurally unfair investigation that excluded the suspect, ignored overwhelming exculpatory evidence, and relied on a scientifically flawed forensic report to justify a decision to prosecute that was, from the outset, irrational. 2. To allow this prosecution to proceed would be to set a dangerous precedent. It would signal that any litigant who loses a civil case can transform their dispute into a criminal one simply by making a complaint to the police. It would encourage the powerful to use the state’s coercive machinery against those who seek to vindicate their rights in court. The High Court, as the custodian of the Constitution and the supervisor of all subordinate courts and tribunals, must act decisively to prevent such an outcome. 3. The petition by Julius Simiyu Namukhondo is therefore meritorious and succeeds. The criminal process initiated against him is a nullity, an abuse of the court process, and a violation of his fundamental rights. All the proceedings flowing from the complaint by the 1st Respondent are hereby quashed. 4. Consequently, I make the following final orders: 1. A Declaration be and is hereby issued that the actions of the Respondents in investigating and prosecuting the Petitioner based on the complaint by the 1st Respondent, leading to Makadara Criminal Case No. E5722 of 2025, are unconstitutional and violate Articles 27, 28, 29, 47, 49, and 50 of the Constitution of Kenya, 2010. 2. An Order of Certiorari be and is hereby issued to bring into this Court and quash the Charge Sheet dated 12th November 2025, and all related proceedings, orders, and rulings arising from the complaint by the 1st Respondent, including Makadara Criminal Case No. E5722 of 2025 and any related review proceedings in MCELRC No. E378 of 2024 that are solely predicated on the criminal investigation. 3. An Order of Prohibition be and is hereby issued restraining the 2nd Respondent (The Director of Criminal Investigations) and the 3rd Respondent (The Director of Public Prosecutions), their agents, servants, or officers, from arresting, charging, re-charging, detaining, or prosecuting the Petitioner in any manner whatsoever based on the facts giving rise to the complaint by the 1st Respondent. 4. The claim for general and exemplary damages for violation of constitutional rights and malicious prosecution is declined. While the Petitioner has demonstrated a clear violation of his rights, the quashing of the proceedings and the strong condemnation in this judgment serve as a sufficient vindication of his rights and a deterrent against future abuses. The appropriate remedy for malicious prosecution remains a civil suit for damages, for which the 1st Respondent, as the complainant who initiated the process without reasonable and probable cause, would be the proper party. 5. The costs of this Petition are awarded to the Petitioner as against the 1st, 2nd, and 3rd Respondents jointly and severally. Orders accordingly. File Closed Accordingly. **DATED, SIGNED AND DELIVERED VIRTUALLY THIS 27TH DAY OF JULY 2026.** **\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_** **BAHATI MWAMUYE MBS** **JUDGE** In the presence of: - Counsel for the Petitioner – Mr. Sichangi Counsel for the 1st Respondent - Absent Counsel for the 2nd & 3rd Respondents – Ms. Ijahi h/b Ms. Edna Ntabo Counsel for the 4th Respondent - Absent Court Assistant – Mr. Martin