https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7370

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT KIAMBU** **JUDICIAL REVIEW DIVISION** **JUDICIAL REVIEW APPLICATION NO. E019 OF 2025** | | | | --- | --- | | **COLLINS KIPCHUMBA NGETICH** | **1ST APPLICANT** | | **MEMS DISTRIBUTORS LIMITED** | **2ND APPLICANT** | | | | | **AND** | | | **DIRECTORATE OF CRIMINAL INVESTIGATIONS** | **1ST RESPONDENT** | | **DIRECTOR OF PUBLIC PROSECUTIONS** | **2ND RESPONDENT** | | **CHIEF MAGISTRATE’S COURT AT KIAMBU** | **3RD RESPONDENT** | | **ATTORNEY GENERAL** | **4TH RESPONDENT** | | **AND** | | | | | | **KEL CHEMICALS LIMITED** | **1ST INTERESTED PARTY** | | **NATIONAL CEREALS AND PRODUCE BOARD** | **2ND INTERESTED PARTY** | **JUDGMENT** **A. INTRODUCTION** 1. Before the Court for determination is the Applicants’ Notice of Motion dated 17th September, 2025, which was filed pursuant to leave granted on 15th August, 2025. The application and seeks, in the main, orders of certiorari and prohibition in relation to a ruling delivered vide **Kiambu Chief Magistrate’s Court Criminal Case No. E1240 of 2024** and on 5th May, 2025. 2. The Applicants herein are **Collins Kipchumba Ngetich** and **MEMS Distributors Limited**. The Respondents are the **Directorate of Criminal Investigations**, the **Director of Public Prosecutions**, the **Chief Magistrate’s Court** at Kiambu and the Attorney General. **Kel Chemicals Limited** is named as the 1st Interested Party while the **National Cereals and Produce Board** is named as the **2nd Interested Party.** 3. The motion is supported by the affidavit sworn by **Collins Kipchumba Ngetich** and is opposed by the 1st Interested Party through a statement of grounds of opposition dated and a replying affidavit sworn by **Devesh Patel** both dated 10th November, 2025. The Respondents, Despite being granted an opportunity to file their response(s) to the application, the Respondents did not file any affidavit, grounds of opposition or submissions. Thereafter, the court directed that the motion be canvassed by way of written submissions and the record reflects that the Applicants filed submissions dated 4th March, 2026, while the 1st Interested Party filed submissions dated 10th April, 2025. 4. At the center of the dispute is the Applicants’ complaint that they were charged vide the Kiambu **Criminal Case No. E1240 of 2024** on the basis of an investigation and prosecutorial decision which, in their view, ignored material exculpatory evidence and thereafter denied them access to critical documents required for the preparation of their defence. The immediate impugned decision and subject of these Judicial Review Proceedings is the ruling of the 3rd Respondent delivered on 5th May, 2025 dismissing the Applicants’ request for disclosure of witness statements and bank records which they contend are central to their fair trial rights under **Article 50 of the Constitution.** **B. THE NOTICE OF MOTION** 1. The Applicants’ Notice of Motion dated 17th September, 2025 is expressed to be brought under **Article 23(3)(f)** and **Article 47 of the Constitution of Kenya,** **2010, Sections 8 and 9 of the Law Reform Act, Cap 26 Laws of Kenya, Order 53 Rule 3 of the Civil Procedure Rules, 2010, Rule 3(2) of the High Court (Practice and Procedure Vacation Rules)** and all other enabling provisions of the law. The prayers sought include among others, the following: 2. **Spent.** 3. **THAT an Order of Certiorari be directed against the 3rd Respondent to bring this Honourable Court for purposes of being quashed the 3rd Respondent’s ruling delivered on 5th May, 2025 at the Kiambu Chief Magistrate’s Court in favor of the 1st Respondent and by extension, the 2nd Respondent, which dismissed the Applicants’ request for access to critical evidence necessary for preparing their defence.** 4. **THAT an Order of Prohibition be directed against the officers of the 1st Respondent by themselves, their servants, agents or employees or any officer acting under their authority from continuing, maintaining, or proceeding with any criminal charges, investigations, or prosecution against the Applicants herein in relation to the subject matter herein, following the quashing of the said ruling by this Honourable Court.** 5. **Spent.** 6. **.….** 7. **Spent.** 8. **…….** 9. **…….** 10. **……** 11. **THAT costs of this Application be provided for.** 12. **Any other orders this Honourable Court may deem just and appropriate in the circumstances.** 13. Although the motion contains, within the numbered prayers, certain matters of argument, the substantive reliefs for determination in this court’s view are: certiorari to quash the ruling delivered on 5th May, 2025; prohibition to restrain the continuation of the impugned criminal proceedings against the Applicants in relation to the subject matter; and consequential orders on stay and costs. **C. THE APPLICANTS’ CASE** 1. The supporting affidavit sworn by **Collins Kipchumba Ngetich** states that the 1st Applicant is a director of the 2nd Applicant and he was charged before the **Chief Magistrate’s Court at Kiambu in Criminal Case No. E1240 of 2024 on 14th May, 2024** with several counts relating to economic crimes and/or general fraud, and that he pleaded not guilty to the charges. 2. The Applicants’ central complaint is that the 1st and 2nd Respondents selectively supplied documents which they intended to rely on while withholding documents which, according to the Applicants, were material, exculpatory and necessary for the preparation of the defence. They aver that the refusal to disclose the material amounted to a violation of **Article 50(2)(c) and (j) of the Constitution**, which guarantee adequate time and facilities to prepare a defence, and the right to be informed in advance of the evidence the prosecution intends to rely on and to have reasonable access to such evidence. 3. It is further deposed that the Applicants filed an application dated 21st February, 2025 before the trial court seeking disclosure under **Article 50 of the Constitution and section 42A of the Criminal Procedure Code.** That application sought, among other material, witness statements recorded under inquiry, including the 1st Applicant’s own statement submitted to the **Directorate of Criminal Investigations,** and the financial statements of **Kel Chemicals Limited’s Bank of Baroda Account No. 9590040000186,** being the account into which the Applicants allegedly paid money for the purchase of fertilizer under the Local Purchase Orders(LPO’S). 4. The Applicants state that the 3rd Respondent delivered a ruling on 5th May, 2025 dismissing the on disclosure application of material facts and documents. They fault that ruling on the ground that it accepted, without proper interrogation, the prosecution’s position that disclosure was limited to documents the prosecution elected to rely upon. In the Applicants’ view, the trial court failed to consider that the requested documents had a direct bearing on whether the Applicants were properly charged at all, and whether the prosecution had ignored material facts and documents pointing away from the Applicants and towards the 1st Interested Party. 5. The factual background pleaded by the Applicants is that the 2nd Applicant, **MEMS Distributors Limited,** was a fertilizer distributor under the **Government of Kenya’s 2024 Long Rains Fertilizer Subsidy Programme.** The Applicants state that they entered into supply arrangements with the 1st Interested Party, **Kel Chemicals Limited,** for the supply of **NPK 10:26:10** fertilizer pursuant to Local Purchase Orders dated 26th January, 2024 and 8th March, 2024 respectively. It is their case that **Kel Chemicals Limited** furnished the 2nd Applicant with a manufacturer’s authorisation dated 21st December, 2023 and was obligated to deliver the fertilizer directly to the 2nd Interested Party’s depots. 6. The Applicants further aver that in March,2024 a public complaint arose in alleging that fertilizer distributed through the 2nd Interested Party’s depots contained stones mixed with manure. The **Kenya Bureau of Standards** is said to have conducted investigations at **Kel Chemicals Limited’s Thika Garissa Road** facility on 22nd March, 2024. According to the Applicants, KEBS test results indicated that all the three brands of fertilizer produced by Kel Chemicals Limited failed to meet the relevant NPK compound specification, particularly in relation to macro-nutrients and moisture. 7. The Applicants rely on the KEBS final investigation report dated 5th April, 2024, which they say, recommended the prosecution of **Kel Chemicals Limited**. They also rely on proceedings before the **Standards Tribunal in Appeal No. STA/E005 of 2024**, where, according to them, the Tribunal confirmed that product quality responsibility rested solely with **Kel Chemicals Limited** as the manufacturer. They further point to what they describe as admissions by **Kel Chemicals Limited’s Chief Operating Officer, Mr. Devesh Patel,** that unauthorised organic formulations were introduced into the fertilizer, and to transporter statements which allegedly show that **Kel Chemicals Limited** directly instructed the transporters without the involvement of the Applicants. 8. It is also averred that the 2nd Interested Party did not lodge a complaint against the Applicants and that the **Public Procurement Regulatory Authority** found no irregularity in the tender process so as to implicate the Applicants. Therefore, the Applicants contend that the decision to charge them was irrational, selective, procedurally unfair and made without proper consideration of relevant material facts and documents. They maintain that the failure by the Respondents to disclose the requested documents deprived them of the very material that would demonstrate the weaknesses and unfairness of the prosecution’s case. **D. THE 1ST INTERESTED PARTY’S OPPOSITION** 1. The 1st Interested Party opposed the motion through grounds of opposition dated 10th November, 2025. The grounds are that the application offends **Section 7 of the Fair Administrative Action Act** because the Applicants are seeking judicial review orders against a judicial decision rather than an administrative decision; *that the motion constitutes an appeal disguised as judicial review; that the application offends the doctrine of exhaustion under Section 9(2) of the Fair Administrative Action Act; that the orders sought would interfere with the constitutional mandate of the 1st and 2nd Respondents to investigate and prosecute; that no grave dereliction of duty, abuse of a fundamental principle of law or injustice has been shown; and that, the application is an abuse of the process of the Court.* 2. In the replying affidavit sworn by **Devesh Patel** on 10th November, 2025, the 1st Interested Party states that the Applicants had filed an application dated 21st February, 2025 before the Chief Magistrate’s Court at Kiambu seeking access to documents which included statements of named persons associated with **Kel Chemicals Limited,** the introduction and manufacturer’s authorisation, and bank statements **for Kel Chemicals Limited’s Bank of Baroda Account No. 9590040000186.** 3. Mr. Patel deposes that the trial court heard that application and delivered its ruling on 5th May, 2025, holding that the documents sought did not form part of the evidence which the 2nd Respondent intended to rely upon in the prosecution. He states that the trial court further considered the affidavit of **Chief Inspector Joseph Wafula** sworn on 3rd March, 2025 and accepted the position that the documents sought by the Applicants were not intended to be relied upon by the prosecution. 4. The 1st Interested Party contends that the present motion is defective, incompetent and an abuse of court process because it seeks judicial review against a valid judicial decision. It argues that if the Applicants are aggrieved by the ruling of 5th May, 2025, they ought to have filed an appeal or an application for review before the trial court. In its view, the Applicants are inviting this Court to interrogate the merits of the trial court’s ruling and to substitute own view for that of the trial court’s view with its own. 5. The 1st Interested Party further contends that the Applicants have not shown serious neglect of duty or legal violation by there to justify this court’s intervention. It also argues that the allegations of malice and misconduct against the 1st and 2nd Respondents are unsupported by concrete evidence and are founded on conjecture. It points to other proceedings touching on the commercial relationship between the parties, including **High Court Commercial Case No. E350 of 2024, Kiambu Criminal Case No. E1240 of 2024 and High Court Constitutional Petition No. E270 of 2024,** and asserts that the Applicants are attempting to litigate matters pending in other fora. 6. Finally, the 1st Interested Party states that any grievance relating to the charge sheet and the charges ought to be raised before the trial court, and that this Court lacks jurisdiction to determine issues regarding the charge and charge sheet, which issues were notraised before the trial court at the first instance. It urges that the application be struck out or dismissed with costs to them. **E. SUBMISSIONS OF THE PARTIES** 1. The Applicants submit that the motion raises two issues: first, the ruling of the 3rd Respondent delivered on 5th May, 2025 dismissing their disclosure application; and second, the decision of the 1st and 2nd Respondents to charge and prosecute them in Criminal Case No. E1240 of 2024. They argue that both decisions are tainted by illegality, irrationality and procedural impropriety and that they violate Articles 47 and 50 of the Constitution. 2. On the principles governing judicial review, the Applicants rely on **Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374, Pastoli v Kabale District Local Government Council & Others [2008] 2 EA 300, Republic v District Land Surveyor, Bungoma South District & 5 Others Ex parte Michael Reuben Wekesa & 2 Others [2014] eKLR, and Judicial Service Commission & Another v Lucy Muthoni Njora [2021] eKLR.** They submit that modern judicial review is no longer a purely formalistic process-only remedy and that where the impugned decision trenches upon constitutional rights, the Court may interrogate the surrounding circumstances to the determine legality, rationality and procedural fairness. 3. On the decision to charge, the Applicants cite **Article 157(11) of the Constitution** and submit that the **Director of Public Prosecutions** is required to have regard to the public interest, the interests of the administration of justice and the need to prevent and avoid abuse of legal process. They rely on the cases of **Bernard Mwikya Mulinge v Director of Public Prosecutions & 3 Others [2019] eKLR, Anthony Murimi Waigwe v Attorney General & 4 Others [2020] eKLR and Diamond Hasham Lalji & Another v Attorney General & 4 Others [2018] eKLR** for the proposition that prosecutorial discretion is reviewable where it is exercised unconstitutionally, irrationally or in abuse of process. 4. The Applicants submit that no reasonable investigator or prosecutor, acting on the material available, could have charged them. They contend that KEBS identified **Kel Chemicals Limited** as the entity responsible; that **Kel Chemicals Limited’s** own officials allegedly admitted to unauthorised formulations; that transporter statements connected delivery and transportation directly to **Kel Chemicals Limited;** that the Standards Tribunal confirmed that product quality responsibility rested with **Kel Chemicals Limited;** that **KEBS’** own replying affidavit in related proceedings acknowledged that the product sold by **Kel Chemicals Limited** was not the product certified by **KEBS**; and that the 2nd Interested Party and Public Procurement Regulatory Authority (PPRA) did not implicate the Applicants. 5. On disclosure, the Applicants rely on the cases of **Thomas Patrick Gilbert Cholmondeley v Republic [2008] eKLR, Dennis Edmond Apaa & 2 Others v Ethics and Anti-Corruption Commission & Another [2012] eKLR, Director of Public Prosecutions v Peter Aguko Abok & 35 Others [2020] eKLR, and Joseph Ndungu Kagiri v Republic [2016] eKLR. Their submission is that the right under Article 50(2)(j)** cannot be read narrowly to mean only evidence which the prosecution elects to rely upon, and that the duty to disclose is continuing and includes material necessary for adequate preparation of the defence. 6. On the other hand, the 1st Interested Party submits that the application seeks to quash a judicial decision of a court of competent jurisdiction and is therefore not properly within **Section 7 of the Fair Administrative Action Act.** It argues that judicial review is a supervisory remedy concerned with administrative or quasi-judicial functions and not a device for challenging a ruling delivered after parties were heard. The 1st Interested Party relies on the proposition that judicial review is concerned with the decision-making process and not the merits of the decision. 7. The 1st Interested Party also submits that the Applicants are seeking to have this Court to s sit on appeal over the ruling delivered on 5th May, 2025. It further submits that the Applicants had alternative remedies, including appeal or review before the trial court and the High Court’s revisionary jurisdiction under **Section 362 of the Criminal Procedure Code**. It cites the cases Speaker of the **National Assembly v Karume [1992] KECA 42 (KLR) and Waswa v Republic (Petition 23 of 2019) [2020] KESC 23 (KLR)** on the doctrine that where a procedure for redress exists, it should be followed, and on the limited circumstances in which interlocutory decisions in criminal matters may be appealed before final judgment. 8. On prosecutorial independence, the 1st Interested Party relies on the Provisions set out under **Article 157 of the Constitution** and submits that the 1st and 2nd Respondents are constitutionally mandated to investigate and prosecute. It contends that the charges disclose offences which on their face question of sufficiency of evidence belongs to the trial court, and that the Applicants have not demonstrated exceptional circumstances to justify intervention of this court in an ongoing criminal process. It urges that the motion be dismissed with costs. **F. ANALYSIS AND DETERMINATION.** 1. Having considered the Notice of Motion, the supporting affidavit, the grounds of opposition, the replying affidavit, the written submissions and the authorities cited, the issues that arise for determination are as follows: (a**) Whether the application is incompetent for allegedly seeking judicial review against a judicial decision and for allegedly bypassing the appeal, review or revision processes.** **(b) Whether the ruling delivered by the 3rd Respondent on 5th May, 2025 is amenable to certiorari;** **(c) Whether the refusal to compel disclosure of the requested material violated the Applicants’ rights under Article 50 of the Constitution;** **(d) Whether the decision to charge and continue prosecuting the Applicants in Criminal Case No. E1240 of 2024 is tainted by illegality, irrationality, procedural impropriety or abuse of process; and** **(e) What reliefs, if any, should issue.** 1. **On the nature and scope of judicial review,** the starting point is that judicial review is not an appeal. It is not a roving commission by which the High Court retakes evidence, reheats the trial court’s discretion, or decides whether the Applicants are guilty or innocent. The traditional statement in the case of ***Municipal Council of Mombasa v Republic & Umoja Consultants Ltd [2002] eKLR*** remains good law: that judicial review is concerned with the decision-making process and not with the merits of the decision itself. The same principle was restated in the case of ***Pastoli v Kabale District Local Government Council & Others [2008] 2 EA 300***, where the grounds of illegality, irrationality and procedural impropriety were set out as the classic heads of review. 2. That having been said, after 2010, the Constitutional architecture, enlarged the remedial lens. **Article 47** constitutionalises fair administrative action, **Article 50** entrenches the right to *a fair trial, Article 23 empowers the Court to grant appropriate relief, and Article 165(6) and (7) gives the High Court supervisory jurisdiction over subordinate courts and over any person, body or authority exercising judicial or quasi-judicial functions, but not over a superior court*. Meanwhile, **Sections 8 and 9 of the Law Reform Act and Order 53 of the Civil Procedure Rules** remain available procedural vehicles for certiorari and prohibition. Therefore, the court cannot accept, as a broad proposition, that a decision of a subordinate court is insulated from certiorari merely because it is judicial in character. 3. The correct position is more refined. A judicial decision of a subordinate court is not to be disturbed through judicial review merely because a party considers it wrong on the merits. However, where the complaint is that the *subordinate court acted without jurisdiction, exceeded* *jurisdiction, committed an error of law apparent on the face of the record, breached the rules of natural justice, failed to consider a constitutional right, or made a decision that produces procedural unfairness, or otherwise touches on the rights preserved under* ***Article 47 of the Constitution*,** certiorari may issue. That is why certiorari has historically issued to quash decisions of inferior courts and tribunals made in excess of jurisdiction or in violation of the rules of natural justice. 4. It is this court’s finding that the 1st Interested Party’s argument that the motion is incompetent because it challenges a judicial decision is therefore too wide. The more precise question is whether the Applicants are inviting this Court to determine the merits of the criminal case or the merits of the trial court’s discretion, or whether they are challenging the legality and constitutional fairness of the process by which the ruling was arrived at. 5. Having read the motion, the affidavit and the submissions, I am satisfied that the grievance is not merely that the trial court reached an unfavourable decision. The Applicants contend that the trial court adopted an unduly narrow and unconstitutional test of disclosure and thereby undermined rights of a party as guaranteed under **Article 50(2)(c) and (j) of the Constitution,** I find that, That is a question of legality and constitutional process and not an appeal in costume. 6. **On the issue of exhaustion and alternative remedies: Section 9 of the Fair Administrative Actions Act** requires a party to exhaust available internal remedies before approaching the Court, unless exceptional circumstances exist to justify the exemption. The principle set out in the case of ***Speaker of the National Assembly v Karume [1992] KECA 42 (KLR)***, that where the *Constitution or statute provides a clear procedure it should be strictly followed, is a sound one.* It protects orderly litigation and prevents parties from sprinting past prescribed fora like litigants fleeing a procedural beehive. 7. However, the doctrine of exhaustion is not a ceremonial key that locks every constitutional door. The question is whether the alternative remedy is efficacious, adequate and capable of addressing the grievance in time. Where the complaint concerns denial of disclosure necessary for trial preparation in an ongoing criminal process, a remedy after conviction, or after the trial has been conducted on a materially unfair footing, may come too late. 8. The 1st Interested Party has urged that the Applicants could have appealed, sought review or invoked revision under **Section 362 of the Criminal Procedure Code**. Nevertheless, while those remedies may be available in appropriate cases, the High Court’s supervisory jurisdiction under **Article 165(6) and (7)** is itself a constitutional remedy. A denial of disclosure of material facts is said to be central the to preparation of a defence is precisely the kind of grievance that may, depending on the facts, justify timely supervisory intervention because it affects the fairness of the trial before the same is concluded. 9. I therefore find that the application is not defeated merely because appeal, review or revision might have been arguable alternatives. The present motion raises alleged ongoing violations of fair trial and the fair administration rights. Those are complaints the fall within the supervisory and constitutional jurisdiction of this Court as provided for under **Article 47 of the Constitution.** 10. With regard to **the constitutional right to disclosure: Article 50(2)(c) of the Constitution** guarantees every accused person the right to have adequate time and facilities to prepare a defence. ***Article 50(2)(j)*** *guarantees the right to be informed in advance of the evidence the prosecution intends to rely on and to have reasonable access to that evidence*. And, **Article 50(2)(k) of the same Constitution** also *guarantees the right to adduce and challenge evidence.* These provisions are interlinked. An accused person cannot meaningfully challenge evidence whose context has been withheld, and neither the accused prepare a defence where material investigative documents pointing to alternative culpability or exculpation are treated as a private cupboard of the prosecution. 11. The Court of Appeal in the case of ***Thomas Patrick Gilbert Cholmondeley v Republic [2008] eKLR*** emphasised that the prosecution is under a duty, in advance of trial, to supply an accused person with relevant material in its possession, including witness statements and documentary exhibits, so that the accused may adequately prepare his defence. In the case of ***Dennis Edmond Apaa & 2 Others v Ethics and Anti-Corruption Commission & Another [2012] eKLR***, the High Court explained that the phrase “to be informed in advance”, *under* ***Article 50(2)(j),*** *cannot be read restrictively to mean only before the trial begins, and that the duty of disclosure is a continuing one throughout the criminal trial process*. In ***Director of Public Prosecutions v Peter Aguko Abok & 35 Others [2020] eKLR***, the Court also underscored that disclosure is a practical *fair trial obligation whose purpose is to enable effective preparation and avoid trial by ambush.* 12. The 1st Interested Party submitted, and the trial court appears to have accepted, that the prosecution is only obliged to disclose documents it intends to rely upon. That submission captures only a part of the constitutional duty. It is true that **Article 50(2)(j)** expressly refers to evidence which the prosecution intends to rely on. But **Article 50(2)(c),** read together with **Article 50(2)(j),** the right to challenge evidence, and the broader duty of fairness, cannot permit the prosecution to shield material gathered in investigations merely by declaring that it will not rely on it. The prosecution and is a minister of justice, not a tactical trader in selective disclosure. Where material is in the possession of, or available to the investigative or prosecutorial authorities and is relevant to the charges, the defence, or the fairness of the proceedings, the obligation of disclosure may arise even if the prosecution would rather not use that material. 13. There will of course be limits. Disclosure is not a licence for fishing expeditions, harassment of witnesses, access to privileged material, or disclosure that threatens national security, witness safety or ongoing lawful investigations. A court confronted with a disclosure application may impose redactions, protective directions and/or staged disclosure. But what the court must do is to ask the correct question: which is, *whether the material sought is relevant or reasonably necessary for the preparation of the defence and the fairness of the proceedings.* It is not enough to ask whether the prosecution has elected to rely on it. 14. In the present case, the Applicants sought to be supplied with copies of witness statements of persons connected with **Kel Chemicals Limited,** the introduction and manufacturer’s authorisation, and bank statements of **Kel Chemicals Limited’s Bank of Baroda** account into which the Applicants say payments for fertilizer were made. The criminal allegations arise from the supply, quality, delivery and alleged adulteration of fertilizer under a subsidy programme. The role of the manufacturer, the movement of the product, the payment trail, the representations made to the Applicants and the regulatory responsibility of **Kel Chemicals Limited** are all issues that go to the root of the charges. The requested material was therefore facially relevant to the preparation of the defence. 15. In the ruling of 5th May, 2025, the trial magistrate dismissed the request by the Respondent substantially on the footing that the documents were not part of the prosecution’s intended evidence and that statements used by the investigating officer did not ordinarily form part of the evidence to be relied upon. With respect, the Interested Party argues that the that was too narrow. It treated the prosecution’s election as conclusive of constitutional relevance. It failed to grapple with the Applicants’ specific contention that the undisclosed material was exculpatory or necessary to test the prosecution theory. It also failed to give adequate weight to **Article 50(2)(c)** on adequate facilities to prepare a defence. The result was a procedural unfairness that is amenable to orders of certiorari. 16. **As for the decision to charge and continue prosecution: it is worth noting that** the Director of Public Prosecutions enjoys constitutional independence under ***Article 157****. Under* ***Article 157(6),*** *the DPP may institute and undertake criminal proceedings against any person before any court, other than a court martial, in respect of any offence alleged to have been committed. Under Article 157(10),* in exercise of its powers, the Director of Public Prosecutions the DPP does not require consent or direction from any person or authority That independence is not ornamental. It is a core constitutional safeguard against both impunity and improper interference by anyone, anybody or institution. 17. But **Article 157(11)** is equally clear. That in exercising prosecutorial powers, the DPP must have regard to the public interest, the interests of the administration of justice, and need to prevent and avoid abuse of the legal process. That provision is a constitutional compass. It means the prosecution’s independence is not prosecutorial immunity. It is independence under law. In the case of ***Diamond Hasham Lalji & Another v Attorney General & 4 Others [2018] eKLR***, the Court of Appeal held that *prosecutorial discretion is amenable to judicial review where it is shown to be exercised in contravention of the Constitution, in bad faith, for improper purpose, in abuse of process, or in disregard of relevant considerations*. The burden initially rests on the person alleging unconstitutional exercise of prosecution’s power, but once sufficient evidence is placed before the Court, the evidential burden shifts to the prosecutor to justify the decision. 18. However, the Court must be cautious. It must not decide whether the Applicants are innocent. It must not weigh the evidence as though conducting a criminal trial. The authorities, including the cae of ***Meixner & Another v Attorney General [2005] eKLR***, warn against turning judicial review into a criminal trial in chambers, hence, the question for this Court determination is narrower: *whether the institution and continuation of the prosecution, viewed against the pleaded process, discloses illegality, irrationality, procedural impropriety or abuse of process sufficient to warrant intervention.* 19. The Applicants placed before the Court a coherent chain of material, which, if unanswered, raises serious questions about the fairness and rationality of the decision to charge them. They assert that KEBS investigations identified **Kel Chemicals Limited** *as the producer whose fertilizer failed the applicable standards; that Kel Chemicals Limited was the manufacturer and permit holder responsible for product quality; that Kel Chemicals Limited’s own official admitted the introduction of unauthorised formulations; that transporters’ statements linked transportation instructions directly to Kel Chemicals Limited; that the Standards Tribunal confirmed the manufacturer’s product quality responsibility; that the 2nd Interested Party did not complain against the Applicants; and that PPRA did not find procurement irregularity implicating them.* 20. Those allegations do not merely say that the prosecution evidence is weak. They allege that the decision to charge was made while ignoring the readily available exculpatory material and refusing to disclose the very documents by which the Applicants would demonstrate their defence. The Applicants also aver that some of the documents had been supplied to their investigators but were not incorporated into the prosecutorial record. If correct, that is a complaint about the integrity of the investigative and prosecution process. 21. It is worthnoting that the Respondents, who bear the constitutional and statutory responsibilities for investigation and prosecution, filed no response. They did not place before this Court *the investigation’s diary, the review note, the reasons for preferring charges against the Applicants notwithstanding the alleged KEBS report, the material considered by the DPP, or any explanation why the requested statements and bank records were irrelevant, unavailable, privileged, unsafe to disclose, or unnecessary*. The 1st Interested Party’s affidavit, in stating its opposition, cannot substitute the constitutional explanation that was expected from the investigating and prosecuting agencies. 22. In those circumstances, the Court is entitled to draw the conclusion that the Applicants’ account of procedural unfairness and non-disclosure has not been sufficiently answered by the public authorities whose decisions are under review. Silence by a public decision-maker does not automatically prove illegality, but where serious allegations of constitutional breach are made and supported by specific factual material, a failure to respond leaves the Court with only the uncontroverted account of the applicant and the opposition of a private interested party. The criminal process is too grave an instrument to be defended by shadows. 23. I therefore find that the Applicants have demonstrated, on the standard applicable in judicial review, that the decision-making process leading to the prosecution and the continued prosecution in **Criminal Case No. E1240 of 2024,** is tainted by procedural unfairness. The denial of disclosure worsened that unfairness because it deprived the Applicants of reasonable access to material relevant to their defence. The continuation of proceedings on that foundation would offend the interests of the administration of justice and the need to avoid abuse of legal process under **Article 157(11) of the Constitution,2010.** **Should the prayers sought should then issue?** 1. **On whether an order of certiorari should issue: it is trite that** the order of certiorari issues to *quash a decision made without or in excess of jurisdiction, in breach of the rules of natural justice, in error of law, or in a manner tainted by illegality, irrationality or procedural impropriety*. In the case of **Kenya National Examination Council v Republic ex parte Geoffrey Gathenji Njoroge & 9 Others [1997] eKLR,** the Court of Appeal described certiorari as ‘‘a remedy by which the High Court brings up and quashes a decision made without jurisdiction, in excess of jurisdiction, or in breach of natural justice. 2. For the reasons already stated in the ruling delivered on 5th May, 2025, the trial court adopted an unduly restrictive approach to disclosure and failed to sufficiently with the constitutional dimension of the application before the trial court. It treated the prosecution’s intended reliance on as the controlling criterion, whereas the constitutional question was wider: whether the requested material was relevant and necessary for the Applicants’ fair trial rights. That was an error of law with practical consequences for the fairness of the criminal proceedings. Certiorari is therefore merited. 3. **As for whether the order of prohibition should issue:** It is trite thatProhibition is forward-looking. It prevents a body or authority from continuing proceedings or taking steps in excess of jurisdiction, in contravention of the law, or in violation of natural justice. The order is not issued to punish past error. It is issued to halt a continuing or threatened illegality. If the only defect in this matter had been the trial court’s ruling on disclosure, the Court might have considered remitting the disclosure application for rehearing before a different magistrate or giving directions on disclosure. However, the Applicants’ complaint goes on to challenge the fairness of the investigative and prosecution process itself, and the Respondents have not answered that complaint. 4. In the result, I am satisfied that the Applicants have brought themselves within the threshold for the grant of judicial review orders. The motion is therefore merited. **DISPOSITION** 1. Consequently, the Notice of Motion dated 17th September, 2025 succeeds and the court proceed to make the following orders: 2. **An order of certiorari is hereby issued bringing into this Court and quashing the ruling delivered on 5th May, 2025 by the 3rd Respondent in Kiambu Chief Magistrate’s Court Criminal Case No. E1240 of 2024, to the extent that the ruling dismissed the Applicants’ request for access to witness statements, bank records and other critical documents in the Respondent’s custody which are necessary for the preparation of their defence.** 3. **An order of prohibition is hereby issued restraining the 1st and 2nd Respondents, whether by themselves, their officers, agents, servants or any person acting under their authority, from continuing, maintaining or proceeding with the criminal charges and prosecution against the Applicants in Kiambu Chief Magistrate’s Court Criminal Case No. E1240 of 2024 in relation to the subject matter of these proceedings, on the present investigative and prosecution’s foundation.** 4. **For avoidance of doubt, this judgment does not bar any lawful, fresh and independent review by the 2nd Respondent conducted in accordance with Article 157(11) of the Constitution, Article 50 of the Constitution, the Fair Administrative Action Act, provided that such review considers all relevant inculpatory and exculpatory materials presented by parties.** 5. **The interim stay orders previously granted are spent and are hereby subsumed in the final orders herein.** 6. **Each party shall bear its own costs.** 7. It is so ordered. **RULING DELIVERED VIRTUALLY VIA MICROSOFT TEAMS THIS 11TH** DAY OF **MAY, 2026.** **HON. D. O. CHEPKWONY** **JUDGE** **In the Presence of:** M/s Faith Cherono counsel for Applicants. N/A for advocate for Respondents N/A for advocate for Interested Parties