https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11267

Ndungu & 2 others v State Law Office & 3 others (Judicial Review E036 of 2024) [2026] KEHC 11267 (KLR) (22 July 2026) (Ruling) Neutral citation: [2026] KEHC 11267 (KLR) Republic of Kenya In the High Court at Machakos Judicial Review E036 of 2024 JM Gandani, J July 22, 2026 Between Gabriel Ngugi Ndungu 1st Applicant Moses Ndungu Mungai & another & another 2nd Applicant and State Law Office 1st Respondent Bilha Wanjiru & 2 others & 2 others 2nd Respondent Ruling A. Background 1.The Applicants filed a Notice of Motion dated 3rd March 2025 seeking an order of prohibition against the Inspector General of Police, the Director of Public Prosecutions, and any magistrate in the Republic of Kenya to restrain them from hearing, taking notes, or recording any evidence whatsoever concerning Mavoko Town Block 2/6878 and Mavoko Town Block 2/6880 located at Machakos Municipality. 2.The application is supported by a Certificate of Urgency dated 3rd September 2024 and a Verifying Affidavit sworn on 3rd September 2024 by Moses Ndung’u Mungai, the 1st Applicant, and owner of Mavoko Town Block 2/6878 and Mavoko Town Block 2/6880 who further depones that he has authority from the 2nd and 3rd Applicants to swear on their behalf. He also states that he is a director of Okoa Development Company Limited and that the 2nd and 3rd Applicants are employees of the company. 3.The Applicants’ case, as set out in the Certificate of Urgency and the verifying affidavit, is that the Applicants subdivided Mavoko Town Block 3/6878 and Mavoko Town Block 3/6880 and sold plots to purchasers. They state that the Interested Party purchased a plot in 1997 or thereabouts through Okoa Development Company Limited, and that the Interested Party is in possession and occupation of the plot. They further state that Okoa Development Company Limited is in the process of issuing title deeds to purchasers. 4.The Applicants state that they have been summoned by the DCIO Machakos under the powers conferred upon him under National Police Service Act, 2011 and section 52(2) of the Penal Code, and they annex copies of the summons. They state that they were shocked to learn that the Interested Party has repeatedly and falsely accused them of obtaining money by false pretenses, and they contend that the police are harassing and intimidating them with the intention of arresting and charging them. They pray for intervention to stop threats, arrest, and prosecution pending hearing and determination of the proceedings. 5.The Interested Party opposed the Motion and filed a replying affidavit and grounds of opposition dated 22nd April 2025, and written submissions dated 3rd December 2025, all of which documents I have considered. The Interested Party’s position is that the Applicants should honour the summons if they are operating with clean hands, and that the orders sought are unlawful and unjustifiable because they would improperly restrain agencies mandated to investigate and prosecute crime. The Interested Party relies, among other authorities, on Douglas Maina Mwangi v Director of Public Prosecutions & another [2013] KEHC 4434 (KLR) and Kariuki Muigua t/a Kariuki Muigua & Co. Advocates v Commissioner of VAT & 2 others [2012] eKLR. 6.The Applicants’ written submissions dated 16th October 2025 support the Motion. They rely on section 193A of the Criminal Procedure Code, and they contend that the police should exercise their powers responsibly. They cite Pastoli v Kabale District Local Government Council & others (Uganda) (2018) 2 EA 300 on judicial review grounds, Joram Mwenda Guantai v The Chief Magistrate, Nairobi Civil Appeal No. 228 of 2003 (2 EA 170) on prohibition in cases of oppression, and Kuria & 3 others v Attorney General (2002) 2 KLR on the legal relationship between civil and criminal proceedings. B. Issues For Determination 7.The issues for determination are:a.Whether the Applicants have met the threshold for an order of prohibition, including a restraint against arrest and prosecution, on the basis of illegality, irrationality, procedural impropriety, or abuse of process.b.Whether section 193A of the Criminal Procedure Code supports the Applicants’ case for prohibition in the circumstances before the Court. C. Analysis 8.Prohibition is an exceptional public law remedy and it issues to restrain unlawful exercise of power, excess of jurisdiction, or abuse of process. It is not granted to confer blanket immunity from lawful investigations, and it is not granted on apprehension alone. 9.I agree with the Applicants that the classical grounds for judicial review are illegality, irrationality, and procedural impropriety, as expressed in Pastoli v Kabale District Local Government Council & others (2018) 2 EA 300. However, stating the test is not enough. The Applicant must connect the test to specific unlawful conduct or a specific unlawful decision. 10.In the present matter, the Applicants exhibit summons from DCIO Machakos and state that investigations relate to obtaining money by false pretences. They do not exhibit a charge sheet, a criminal case number, or a decision by the Director of Public Prosecutions to prosecute. In that posture, the Court is being asked to restrain investigative steps and hypothetical future proceedings without a concrete prosecutorial decision or an identified unlawful process capable of being prohibited. 11.The Applicants allege harassment and intimidation with intention to arrest and charge. That allegation is serious. However, it is pleaded in general terms and without particulars that would enable the Court to find illegality or bad faith. What is plainly shown is that the Applicants have been summoned for investigations. A summons to attend and assist investigations, without more, is a lawful step in criminal investigations. 12.The Applicants also rest their case on the narrative that the dispute is fundamentally a land transaction dispute with long occupation, and that the Interested Party has been in occupation for decades while title processing is ongoing. That may be so, but it does not establish that a complaint of obtaining money by false pretences is necessarily fabricated, and it does not establish that investigations are an abuse of process. Whether the complaint is true or false is not for judicial review to determine at this stage, unless the Court is shown clear evidence that the criminal process is being used for an ulterior purpose or in a manner that is oppressive or vexatious. 13.This is the point addressed in Kenyan authority. In Douglas Maina Mwangi v Director of Public Prosecutions & another [2013] KEHC 4434 (KLR), the Court emphasised that interference with investigations or prosecution is only justified where the applicant demonstrates that the process is actuated by malice, bad faith, or is being used for collateral ends, and where the criminal justice process is thereby turned into an abuse. On the record before me, that threshold has not been met. 14.I also consider the Interested Party’s reliance on Kariuki Muigua t/a Kariuki Muigua & Co. Advocates v Commissioner of VAT & 2 others [2012] eKLR for the general proposition that judicial review is concerned with the legality of the process and not with merits. The Applicants’ Motion, in its current framing, asks this Court to effectively determine in advance that the accusations are false, and to restrain investigations and any prosecution on that basis. That would draw the Court into merits, which is impermissible within the narrow remit of prohibition. 15.The Applicants rely on section 193A of the Criminal Procedure Code and suggest that it supports the Court’s intervention. I do not agree. Section 193A provides that the existence of civil proceedings is not a ground for stay, prohibition, or delay of criminal proceedings. Properly understood, section 193A negates the argument that a criminal investigation or prosecution must stop merely because there is a civil dispute or civil process on similar facts. 16.The Applicants also cite Kuria & 3 others v Attorney General (2002) 2 KLR and submit that the normal procedure is to stay civil proceedings pending the criminal case. This position does not assist the Applicants in the way they deploy it. First, the Applicants are not seeking stay of civil proceedings but are seeking to stop investigations, arrest, and prosecution. Second, section 193A is a statutory answer that cautions against stopping criminal processes merely due to overlap with civil disputes, and therefore the Applicants must demonstrate something more, namely abuse of process, oppression, or illegality. 17.The Applicants further rely on Joram Mwenda Guantai v The Chief Magistrate, Nairobi Civil Appeal No. 228 of 2003 (2 EA 170) for the proposition that the High Court may issue prohibition where a person charged before a subordinate court considers himself a victim of oppression. I agree with the principle that the High Court has supervisory jurisdiction and it may intervene where prosecution is oppressive or amounts to abuse of process. However, that principle does not mean that every apprehended arrest, every summons, or every complaint arising from a commercial or land transaction is oppressive. Oppression must be demonstrated by evidence and particulars. In the present application, that has not been done. 18.Finally, the breadth of the prayer sought is itself fatal. The Applicants seek to prohibit not only the police and the DPP but also “any magistrate” from taking any evidence whatsoever concerning the parcels. That relief is overbroad, speculative, and would improperly restrain courts from exercising lawful criminal jurisdiction in undefined future proceedings. Prohibition cannot issue in such general terms. D. Conclusion 19.The Applicants have not demonstrated, on the evidence placed before Court, that the summons and investigations are unlawful, procedurally improper, irrational, or undertaken in bad faith or for collateral purposes. 20.Further, the Applicants have not shown a specific decision by the Director of Public Prosecutions to prosecute that is amenable to prohibition. In addition, section 193A of the Criminal Procedure Code supports the legality of concurrent civil and criminal processes, and it does not support the blanket restraint sought. E. Orders 21.Accordingly, the Notice of Motion dated 3 March 2025 is dismissed. 22.Costs shall be to the Interested Party. DATED, SIGNED AND DELIVERED this 22ND DAY OF JUNE 2026 IN THE Presence Of: No Appearance By Either PartyBEFORE HON LJ JOYCE MKAMBE GANDANI JUDGESIGNED BY/FOR:★ THE JUDICIARY OF KENYA ★HON. LADY JUSTICE JOYCE MKAMBE GANDANIMachakos High CourtHigh Court Div Date: 2026-06-22 15:04:51 The Judiciary of KenyaDoc IDENTITY: 32757182753719518219724669646Tracking Number:OOGXFV2026