https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8226

Nesbitt v Director of Public Prosecution & 5 others (Miscellaneous Application E144 of 2025) [2026] KEHC 8226 (KLR) (Judicial Review) (9 June 2026) (Judgment) Neutral citation: [2026] KEHC 8226 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Law Courts) Judicial Review Miscellaneous Application E144 of 2025 JM Chigiti, J June 9, 2026 Between Nicholas Alexander Nesbitt Applicant and The Director of Public Prosecution 1st Respondent The Director Of Criminal Investigations 2nd Respondent The Inspector General Of Police 3rd Respondent The Chief Magistrate, Milimani Law Courts 4th Respondent and Bidco Africa Limited 1st Interested Party Vimal Shah 2nd Interested Party Judgment The Applicants’ Case; 1.The application that is before this court for determination is the one dated 9th June, 2025 wherein the applicant seeks orders:-1.That this honorable court be and is hereby pleased to issue a judicial review order of certiorari to call-up, remove, deliver up to this honorable court and quash the impugned decision by the 1st, 2nd & Respondents, reposed in the prosecution of the ex-parte Applicant in Milimani Criminal Case No. E034 of 2025 - Republic v Nicholas Alexander Nesbitt & Others instituted vide a Charge Sheet dated 21st January, 2025.2.That this Honorable Court be and is hereby pleased to issue a Judicial Review order of prohibition to restrain the Respondents or anyone claiming under or pursuant to their authority from in any howsoever proceeding with the prosecution of the ex-parte Applicant in Milimani Criminal Case No. E034 of 2025 Republic v Nicholas Alexander Nesbitt & Others or any other such suit premised on the particular as instituted, vide the charge sheet dated 21st January, 2025.3.That the costs of this application be borne by the Respondents on a full indemnity basis. 2.It is the applicant’s case that the impugned criminal proceedings arise from monies exchanged between the1st Interested Party and Bee n Bee Limited pursuant to a Trade Finance Support Agreement dated 23rd May, 2023, entered into between themselves. He was not a party thereto. 3.It is his case that he has been wrongly charged in the impugned criminal proceedings on account of monies paid by the 1st interested party to Bee n Bee Limited, despite not being a director or shareholder of the said Bee n Bee Limited and despite none of the alleged sums having been paid by the 1st Interested Party to the Applicant. 4.It is his case that there is evidence that the commenced criminal prosecution is not only without merit in law. The prosecution machinery is being used unlawfully to harass him and nefariously contrived to coerce him to cede to the 2nd Interested party's demand to repay the sum advanced to Bee n Bee Kenya Limited, merely on the basis that he had introduced the 2nd Interested Party to the said Bee n Bee Kenya Limited, which act of introduction does not in any way whatsoever constitute a criminal offence in law. 5.The Respondents have invoked the aforesaid impugned unlawful criminal proceedings against him, in pursuing a claim that does not lie in law; betraying the patent ulterior motives behind the impugned prosecution, by brandishing the sword of punishment in criminal law, rather than in any genuine desire to punish for a crime committed. 6.He argues that the impugned criminal proceedings are anchored on a clear abuse of prosecutorial discretion by the 1st Respondent designed to achieve certain extraneous goals, certainly not those recognized under the Constitution and the Office of the Director of Public Prosecutions Act for founding prosecution which constitutes an abuse of the legal process. He invites the Court to intervene and bring to an end such wrongful exercise of discretion. 7.According to him,the current prosecutorial regime under the Constitution, and the Office of the Director of Public Prosecutions Act, behooves this Hon. Court to investigate the allegations impugning the subject prosecution; and to consequently make a determination thereon as to compliance with the standards prescribed thereon. 8.To hold that the discretion donated to the 1st Respondent by the law, to prefer charges ought not to be questioned by this Hon. Court would be an abhorrent affront to judicial conscience and above all, the Constitution itself. 9.On or about February, 2023, he in good faith introduced one Mr. Bulent Boytorun, a director at Bee n Bee Kenya Limited to the 2nd Interested Party, a director at the 1st Interested Party whereupon Mr. Bulent Boytorun offered to assist the 1st Interested Party in securing large volumes of US Dollars. 10.Upon introducing Mr. Bulent Boytorun to the 2nd Interested Party, he had NO further role to play in any subsequent Agreement and/or transaction between the aforesaid parties he is neither a director nor shareholder of their aforesaid companies nor an agent of any of the said parties. 11.Subsequently, the 1st Interested Party and Bee n Bee Kenya Limited entered into a Trade Finance Support Agreement dated 23rd May, 2023 (hereinafter referred to as "the Agreement"), executed by the said Mr. Bulent Boytorun on behalf of Bee n Bee Kenya Limited and the 2nd Interested Party on behalf of the 1st Interested Party; with him not being a party to the same and thus having no obligations whatsoever in respect to the said Agreement. 12.He is further aware that all sums that were subject of the transaction were paid by the 1st Interested Party directly to Bee n Bee Kenya Limited. 13.He is not a director nor shareholder of the said Bee n Bee Kenya Limited. 14.No monies whatsoever were remitted by the 1st Interested Party to him, as indeed he was not in any way an agent of Bee n Bee Kenya Limited nor was he a party to the agreement between the 1st interested Party and Bee n Bee Kenya Limited. 15.He is aware that a dispute subsequently arose between the 1st Interested Party and Bee n Bee Limited in respect of the Agreement, resulting in a declaration of the dispute, for the reason that, the contractual relationship between the 1st Interested Party and Bee n Bee Kenya Limited envisaged an arbitral clause for the settlement of all disputes emanating from the Agreement, at Clause 7 thereof. 16.In that regard, the Applicant is further aware that pursuant to the said arbitral clause, arbitration proceedings between the parties to the Agreement, have since been commenced via a Statement of Claim dated 1st December, 2023. 17.Further, the said arbitral proceedings were subsequently concluded and a final award issued by the Hon. Arbitrator thereto, which arbitral award conclusively resolved the crux of the issues in controversy in the subject criminal proceedings and the obligations accruing against either party. 18.It is his case that he was not a party to the said arbitral proceedings as indeed he was not a party to the Agreement between the parties as such, he had no obligations whatsoever in respect of the Agreement between the parties, which material fact clearly establishes that the impugned criminal proceedings against himself have been commenced for an extraneous purpose. 19.He strongly believes that thus it is clear that he is not guilty of any wrong doing whatsoever, having not been a party nor in any way prior to the Agreement between the 1st Interested Party and Bee n Bee Kenya Limited, which has culminated in the charges herein being unlawfully preferred against him. 20.He argues that the unexplained and summary disregard of the ongoing arbitration proceedings before the Hon. Arbitrator, which would conclusively resolve the crux of the issues in controversy in the subject criminal proceedings and the obligations accruing against either party, betrays the absence of legal cause to investigate and prosecute him — which illegality this Hon. Court cannot countenance to proceed. 21.He argues that the exercise of the decision to prosecute him, where clearly it is a civil dispute between the 1st Interested Party and Bee n Bee Limited and the subject of arbitration proceedings evinces patent irreversible violations of my fundamental freedoms, warranting the immediate grant of the orders sought. 22.The impugned charges do not lie in law and have only been instituted in sheer malice at the behest of the 2nd Interested Party, it is critical to note that the complaint in the impugned charge sheet is the 2nd Interested Party, rather than the 1st Interested Party which ought to be the proper complainant in law, taking into account the material facts of the alleged crime. 23.A critical perusal of the particulars of the count purport that, the alleged offence is in respect of monies purportedly stolen from 2nd Interested Party, despite the subject sums having been remitted by 1st Interested Party, a separate legal entity. 24.The basic principle of company law is that the company has a distinct and separate personality from its shareholders and directors and thus invites the Hon. Court to find concurrence with this tenet that dictates that the property of the company is distinct from that of its shareholders and the shareholders have no proprietary rights to the company's property apart from the shares they own. 25.Accordingly, arising from the circumstances above, the basic consequence of incorporation dictates that only the 1st Interested Party has capacity to take action to enforce its legal rights. 26.The 1st and 2nd Respondents though independent offices under Article 157(10), Constitution; remain subject to the supervision of the High Court under Article 157(11), Constitution as read Articles 165(2); & (6) thereof. This supervision and oversight would not in any way howsoever; unduly fetter, restrict or limit the investigative or prosecutorial authority: but conversely serves to balance and check on the possible excesses in the exercise of this power. 27.Further, though the power exercised by the 1st and 2nd Respondent is discretionary, the Court is enjoined to impeach its (ab)use, where it is exercised in bad faith or receive a viciously or interest antithetical to public interest. 28.Public interest and the weight to be given to each element or aspect depends on the facts of each case and in some cases, state interest may outweigh societal interests: as such it cannot plausibly be in public interest to countenance the use of criminal proceedings as a pawn to coerce a party to submit to an existing civil claim as is sought in the proceedings. 29.He harbors a legitimate apprehension that the charges preferred against me in Milimani Criminal Case E034 of 2025 are actuated by the desire to punish me on account of my refusal to cede to the 2nd Interested party's demand to repay the sum advanced to Bee n Bee Kenya Limited, merely on the basis that I had introduced the 2nd Interested Party to the said Bee n Bee Kenya Limited; by brandishing the sword of punishment in criminal law, rather than in any genuine desire to punish for a crime committed. 30.It is his case that the charges preferred against him in Milimani Criminal Case E034 of 2025 do not lie under the Companies Act, for want of sanction, as such it cannot be just, lawful, fair and/or equitable to subject me to the rigors and vagaries of a criminal trial against such grave violations. 31.According to him it is unjustified to prejudice, humiliate and embarrass him, putting him to unnecessary expense and agony, erstwhile threatening my liberty and disparaging my business on account of the impugned unlawful criminal prosecution against me. 32.The oppressive and vexatious investigation and now prosecution is contrary to public policy and that the Respondents in conducting criminal investigations are bound by the law and the decision to investigate a crime (or prosecute in the case of the Respondent) must not be unreasonable or made in bad faith, or intended to achieve ulterior motive or used as a tool for personal score-settling or vilification. The Hon. Court has inherent power to interfere with such investigation or prosecution process. 33.In deciding whether to commence or pursue criminal prosecution the 1st Respondent must inter alia consider the interests of the public and must satisfy inter alia that the prosecution is necessary, will enhance public confidence in the law and that the case can be resolved easily by civil process without embarrassing and putting an individual's liberty at risk. 34.According to him it is clear that the impugned criminal proceedings against him in, Milimani Criminal Case No. E034 of 2025 is most unlawful and only designed to achieve certain extraneous goals, certainly not those recognized under the Constitution and the Office of the Director of Public Prosecutions Act for founding prosecutions; which constitutes an abuse of the legal process and would entitle the Court to intervene and bring to an end such wrongful exercise of discretion. 35.In his further affidavit the Applicant argues that whereas he was previously a director at Bee n Bee Kenya Limited, he resigned from my role as a director therein on 11thMarch 2022 as set out in the letter from the Business Registration Service dated 22nd September, 2023. 36.It is further his case that he resigned as a signatory to the bank account held by the said Bee n Bee Kenya Limited, and further confirm that have had no participation whatsoever in the management and/or running of Bee n Bee Kenya Limited, since 11th March, 2022. 37.According to him, the impugned prosecution is premised on a Trade Finance Agreement entered into between the 1st Interested Party and Bee n Bee Kenya Limited in the year 2023. 38.As rightly admitted at of the 1st and 2nd Respondents' Replying Affidavit, in which year he was not a director nor shareholder nor in any way involved in the management and/or running of Bee n Bee Kenya Limited. 39.The aforesaid Trade Finance Support Agreement dated 23rd May, 2023 (hereinafter referred to as "the Agreement"), was executed by the said Mr. Bulent Boytorun on behalf of Bee n Bee Kenya Limited and the 2nd Interested Party on behalf of the 1st Interested Party. 40.With him not being a party to the same and thus having no obligations whatsoever in respect to the said Agreement. 41.The alleged USD that was subject of the aforesaid transaction was paid by the 1st Interested Party directly to Bee n Bee Kenya Limited. 42.He argues that no monies whatsoever were remitted by the 1st Interested Party to him. 43.The 1st and 2nd Respondents have not produced any evidence whatsoever to establish that he received and/or in any whatsoever benefited from the sums paid by the 1st Interested Party to Bee n Bee Kenya Limited, that would warrant his prosecution in the impugned criminal proceedings. 44.A perusal of Bee n Bee Kenya Limited's bank statement produced as annexure "EG-I" in the 1st and 2nd Respondent's Replying Affidavit, confirms that, upon Bee n Bee Kenya Limited receiving USD from the 1st Interested Party, no sums whatsoever were transferred by Bee n Bee Kenya Limited to him, as such he did NOT in any way whatsoever receive and/or benefit from the said sums. 45.It is his case that the material background to the impugned criminal proceedings, is that on or about February, 2023, he in good faith introduced one Mr. Bulent Boytorun, a director at Bee n Bee Kenya Limited to the 2nd Interested Party, a director at the 1st Interested Party whereupon Mr. Bulent Boytorun offered to assist the 1st Interested Party in securing large volumes of US Dollars. 46.Materially, he reiterates that upon introducing Mr. Bulent Boytorun to the 2nd Interested Party, he had no further role to play in any subsequent Agreement and/or transaction between the aforesaid parties. 47.It is further his case that whereas I was aware that there were ongoing arbitration proceedings between the 1st Interested Party and Bee n Bee Kenya Limited on account of a dispute that arose in respect of the trade Finance Support Agreement dated 23rd May, 2023 entered into between themselves, he has only recently been made aware that the said arbitration proceedings have been concluded and an Arbitral Award issued thereto. 48.It is his case that he is shocked that the Arbitral award made an adverse finding and/or determination to the effect that he was purportedly an agent of Bee n Bee Kenya Limited in respect of the transaction between the 1st Interested Party and Bee n Bee Kenya Limited, which adverse finding is completely and utterly factually incorrect. 49.It is his case that he wrote to the Hon. Arbitrator, Njeri Kariuki, highlighting that I take great exception to the aforesaid impugned determination against myself, as he has never at any point whatsoever been an agent of the said Bee n Bee Kenya Limited, and further materially that the said impugned determination was made without according him a chance to be heard on the same, contrary to his fundamental right to fair hearing, as enshrined under Article 50 of the Constitution, which right cannot be limited. 50.He demanded that the Hon. Arbitrator immediately recalls the said Arbitral Award and amends the same, removing any adverse inference and he awaits to receive a response from the Hon. Arbitrator in respect of my aforesaid demand and expect a favourable response thereto in as far as deletion of any adverse inference and/or determination in the impugned arbitral award in respect me being an agent of Bee n Bee Kenya Limited, which inference is not only completely and utterly factually incorrect. 51.The aforesaid fact that he was not and have never been an agent of Bee n Bee Limited pertaining the transaction between the Interested Party and Bee n Bee Limited has further been clearly and unequivocally affirmed by Bee n Bee Limited. 52.Indeed, vide a letter dated 29th May, 2025 by the Advocates for Bee n Bee Kenya Limited seeking a review of the decision by the 1st Respondent to charge Bee n Bee Kenya Limited in the impugned criminal proceedings, at paragraph E thereof, it is clearly and unequivocally established that he had no contractual, financial, or operational involvement in the transaction at issue, nor did he hold m any position, interest, or stake in Bee n Bee Kenya Ltd at the time of the transaction. 53.In light of the foregoing, he reiterates that it is certainly clear that he is not guilty of any wrong doing whatsoever, having not been a party nor in any way privy to the Agreement between the 1st Interested Party and Bee n Bee Kenya Limited, which has culminated in the charges herein being unlawfully preferred against him. 54.It is his case that from the foregoing it is thus clear that being charged in the impugned criminal proceedings whereas there is evidence that prima facie the commenced criminal prosecution is not only without merit in law, but is being used unlawfully to harass me and nefariously contrived to coerce him to cede to the 2nd Interested party's demand to repay the sum advanced to Bee n Bee Kenya Limited, merely on the basis that he had introduced the 2nd Interested Party to the said Bee n Bee Kenya Limited, which act of introduction does not in any way whatsoever constitute a criminal offence in law. 55.The interested parties have purported that my impugned prosecution is on account of the existence of a separate company, being BNX Partners Limited, which company was not in any way involved in the transaction between the 1st Interested Party and Bee n Bee Limited. 56.Indeed, a perusal of the 1st and 2nd Respondents' entire Replying Affidavit as well as all the documents intended to be relied upon by the 1st Respondent in the impugned criminal proceedings confirms that the said BNX Partners Limited was no in any way involved in the transaction between the 1st Interested Party and Bee n Bee Limited, as indeed the said company has no in any way been adversely mentioned and/or implicated in the impugned criminal proceedings. 57.It is his case that, notwithstanding any similarity of the directorship in any two companies, the inference that two separate companies are the same entity is a misapprehension of the legal personality of companies. 58.Indeed, the principle of Legal Personality of Companies has been upheld by various Courts of law since time immemorial and as such it is trite law that companies are legal entities that are distinct from their directors and/or shareholders as espoused in the locus classicus case of Salomon vs Salomon 18 AC 8. 59.It is his case that it is thus most important to underscore that the said company, BNX Partners Limited, is a separate legal entity from Bee n Bee Kenya Limited notwithstanding any similarity in directorship, as such BNX Partners Limited and/or its directors cannot in any way whatsoever be held liable for any adverse actions and/or omissions undertaken by Bee n Bee Limited. 60.The interested parties further alleged that he is involved in the management of the said BNX Partners Limited on account of a purported website, without producing any official search to prove the said allegation. 61.the said purported excerpt of BNX Partners Limited's website as produced in the 1st and 2nd Interested Parties replying affidavit being electronic evidence, is inadmissible for failure to comply with the mandatorily provisions of Section 106B of the Evidence Act in regard to production of a Certificate of Electronic Evidence. 62.It is his case that despite the foregoing material facts, the 1st Respondent, at the 2nd Interested party's behest, has now invoked the aforesaid impugned unlawful criminal proceedings against him, in pursuing a claim that does not lie in law; betraying the patent ulterior motives behind the impugned prosecution, by brandishing the sword of punishment in criminal law, rather than in any genuine desire to punish for a crime committed. 63.In this regard, he argues that this Honorable Court, as the bastion of justice and rule of law, must extend apt constitutionally enshrined protection to prevent a patent abuse of criminal/ prosecutorial process resulting in oppression. 64.The aforesaid impugned criminal proceedings are anchored on a clear abuse of prosecutorial discretion by the 1st Respondent designed to achieve certain extraneous goals, certainly not those recognized under the Constitution and the Office of the Director of Public Prosecutions Act for founding prosecutions; which constitutes an abuse of the legal process and would entitle the Court to intervene and bring to an end such wrongful exercise of discretion. 65.He argues that the current prosecutorial regime under the Constitution and the Office of the Director of Public Prosecutions Act, behooves this Hon. Court to investigate the allegations impugning the prosecution; and to consequently make a determination thereon as to compliance with the standards prescribed thereon. 66.According to him, inherently, it is in the interest of the public that this Honorable Court exercises its jurisdiction and upholds its adjudicatory authority to facilitate the order and functioning of public agencies and safeguard my rights. 67.The prosecution has affected his reputation being muddied/tainted, my liberty arbitrarily being deprived, but my business is also threatened with collapse, he the 1st and 2nd Respondents though independent offices under Article 157(10), Constitution; remain subject to the supervision of the High Court under Article 157(11), Constitution as read Articles 165(2); & (6) thereof. 68.This supervision and oversight would not in any way howsoever; unduly fetter, restrict or limit the investigative or prosecutorial authority: but conversely serves to balance and check on the possible excesses in the exercise of this power. 69.Further, though the power exercised by the 1st and 2nd Respondent is discretionary, the Court is enjoined to impeach its abuse, where it is exercised in bad faith or irrespective or for interest antithetical to public interest. 70.The Respondents' decision must evince public interest, the interests of the administration of justice and the need to prevent and avoid abuse of the legal process. 71.Public interest and the weight to be given to each element or aspect depends on the facts of each case and in some cases, state interest may outweigh societal interests: as such it cannot plausibly be in public interest to countenance the use of criminal proceedings as a pawn to coerce a party to submit to an existing civil claim as is sought in the proceedings. 72.He argues that there are Constitutional principles which every public officer including the 1st Respondent should take into account in exercising his power and in performing his functions including the supremacy of the Constitution, the national values which includes rule of law, human dignity, transparency and accountability; and fundamental rights and freedoms, an integral part of which includes fair administrative action and right to a fair trial. 73.It is further his case that in deciding whether to commence or pursue criminal prosecution the 1st Respondent must inter alia consider the interests of the public and must satisfy inter alia that the prosecution is necessary, will enhance public confidence in the law and that the case can be resolved easily by civil process without embarrassing and putting an individual's liberty at risk. 74.Liberty of the individual is a valued individual right and freedom, which should not be tested on flimsy grounds. 75.He strongly maintains that the impugned criminal proceedings against myself in Milimani Criminal Case No. E034 of 2025 is most unlawful and only designed to achieve certain extraneous goals, certainly not those recognized under the Constitution and the Office of the Director of Public Prosecutions Act for founding prosecutions; which constitutes an abuse of the legal process and would entitle the Court to intervene and bring to an end such wrongful exercise of discretion. 76.According to him, the 1st Respondent's decision to charge him is in clear violation of Article & (b), 27(1), 40(1), 47, 157, 232 & 244 of the Constitution as read with Section 4 and 7(2), Fair Administrative Actions Act that enjoins the 1st Respondent to observe and apply the rule of law, as well as equity. 77.It is only fair, prudent and within the overriding objective of this Court that the impugned orders and/or proceedings in Milimani Criminal Case No. E034 of 2025 be quashed. The Ex-parte Applicant's Submissions 78.In buttressing his case, The applicant submits that on or about February, 2023, he was acting in good faith when he introduced Mr. Bulent Boytorun, a director at Bee n Bee Kenya Limited to the 2 nd Interested Party, a director at the 1st Interested Party whereupon Mr. Bulent Boytorun offered to assist the 1st Interested Party in securing large volumes of US Dollars. 79.The Ex-parte Applicant submits that by so doing, he had no further role to play in any subsequent Agreement and/or transaction between the aforesaid parties. 80.He further submits that he is not an agent, a director or a shareholder of the aforesaid companies. 81.After the above introduction, the 1st Interested Party and Bee n Bee Kenya Limited entered into a Trade Finance Support Agreement dated 23rd May, 2023 through the agreement that was executed by the said Mr. Bulent Boytorun on behalf of Bee n Bee Kenya Limited and the 2 nd Interested Party on behalf of the 1st Interested Party. 82.In advancing the above, all sums that were subject of the transaction were paid by the 1st Interested Party directly to Bee n Bee Kenya Limited. 83.He further submits that a dispute subsequently arose between the 1st Interested Party and Bee n Bee Limited in respect of the Agreement, which was referred to arbitration. The ex-parte Applicant was not a party to the said arbitral proceedings. 84.The arbitration culminated in an award that conclusively resolved the crux of the issues in controversy in the subject criminal proceedings and the obligations accruing against either party. 85.He submits that the unexplained and summary disregard of the ongoing arbitration proceedings before the Abritrator, which would conclusively resolve the crux of the issues in controversy in the subject criminal proceedings and the obligations accruing against either party, betrays the absence of legal cause to investigate and prosecute the ex-parte Applicant —which illegality this Hon. Court cannot countenance to proceed. 86.Indeed, the exercise of the decision to prosecute the ex-parte Applicant, pegged on an issue which is a civil dispute between the 1st Interested Party and Bee n Bee Limited and the subject of arbitration proceedings evinces patent irreversible violations of the ex-parte Applicants' fundamental freedoms, warranting the immediate grant of the orders sought herein. 87.This precipitated the institution of the instant proceedings. He submits that judicial review is a central control mechanism of administrative law by which the judiciary protects against abuse of power by public authorities such as the 1 st Respondent. 88.The said role constitutes a safeguard essential to the rule of law by guiding public authorities and ensuring that they act lawfully, are accountable to law and not above it; and thereby protecting the rights and interests of those affected by the exercise of public authority or power. 89.Reliance is placed in the case of Republic v Office of the Director of Public Prosecution & 5 others Ex-Parte Sylvia Wairimu Njuguna [20181 eKLR, wherein the Learned in addressing a similar issue held as follows:“However, according to Judicial Review Handbook, 6 th Edition by Michael Fordham at page 5, judicial review is a central control mechanism of administrative law by which the _judiciary discharges the constitutional protecting against abuses of power by public authorities, It constitutes a safeguard which is essential to the rule of law: promoting the public interest; policing parameters and duties imposed by Parliament; guiding public authorities and lawfully;and protecting the rights and interests of those affected by the exercise of public authority or power”. 90.He submits that whereas Article 157 of the Constitution gives the 1st Respondent the mandate to decide whether or not to prosecute, it is trite law that the said decision to charge, must only be made upon the 1st Respondent being satisfied that the said action is in furtherance of the cause of justice in line with Article 157(11) of the Constitution, as was established in the case of Justus Mwendwa Kathenge v Director of Public Prosecution & another [2019] eKLR, wherein the Learned Judge held as follows:“The DPP exercises its Constitutional mandate in deciding whether or not to prosecute. This mandate is conferred on him by Article 157 of the Constitution. In that regard, when making a decision whether or not to prosecute, the DPP does not require consent from any person or authority.' 91.He submits that the current prosecutorial regime under the Constitution, and the Office of the Director of Public Prosecutions Act, behooves this Court to investigate the allegations impugning the subject prosecution; and to consequently make a determination thereon as to compliance with the standards prescribed thereon. 92.The 1 st and 2nd Respondents though independent offices under Article 157(10), Constitution; remain subject to the supervision of the High Court under Article 157(11), Constitution as read Articles 165(2); (3)(d)(ii) & (6) thereof. 93.This supervision and oversight would not in any way howsoever; unduly fetter, restrict or limit the investigative or prosecutorial authority: but conversely serves to balance and check on the possible excesses in the exercise of this power. 94.The Court is enjoined to impeach its (ab)use, where it is exercised in bad faith, oppressively, capriciously, or interest antithetical to public interest, as was established in the case of Justus Mwendwa Kathenge (supra). 95.He also places reliance in the case of Republic v Director of Public Prosecutions & 2 others Ex-parte Praxidis Namoni Saisi [2016] eKLR, the Learned Judge while emphasizing that the terrain under the current prosecutorial regime has changed and that the discretion given to the 1 st Respondent is not absolute but must be exercised within certain laid down standards provided under the Constitution and the Office of the Director of Public Prosecutions Act. 96.He submits that in deciding whether to commence criminal prosecution, the 1st Respondent must inter alia consider the interests of the public and must satisfy inter alia that the prosecution is necessary, will enhance public confidence in the law and that the same is in line with the laid down standards provided under the Constitution and the Office of the Director of Public Prosecutions Act. 97.Where it is alleged that these standards have not been adhered to, vide judicial review proceedings such as the case herein, it behooves this Court to investigate the said allegations and make a determination thereon. 98.In instances where it is clear that the 1st Respondent's discretion is being exercised with a view to achieving certain extraneous goals other than those legally recognised under the Constitution and the Office of the Director of Public Prosecutions Act, then that would constitute an abuse of the legal process and would entitle the Court to intervene and bring to an end such wrongful exercise of discretion. 99.He submits that the Respondent's discretion is being exercised a view to achieving certain extraneous goals. 100.He submits that the impugned criminal proceedings arise from monies exchanged between the 1st Interested Party and Bee n Bee Limited pursuant to a Trade Finance Support Agreement dated 23 rd May, 2023, entered into between themselves. 101.The applicant submits that he resigned from his role as a director Bee n Bee Kenya Limited on 11th March 2022, as admitted by the 1st and 2 nd Respondents at paragraph 4 of their Replying Affidavit and the letter from the Business Registration Service dated 22nd September, 2023. 102.The Company Search confirms that the exparte Applicant is not a director of the said Bee n Bee Kenya Limited as at June, 2023. 103.He submits that he also resigned as a signatory to the bank account held by the said Bee n Bee Kenya Limited, and further confirms that he has had no participation whatsoever in the management and/or running of Bee n Bee Kenya Limited, since 11th March, 2022. 104.He submits that no funds were paid to him by the 2 nd interested party. 105.The interested parties have further purported that the ex-parte Applicant's impugned prosecution is on account of the existence of a separate company, being BNX Partners Limited, which company was not in any way involved in the transaction between the 1st Interested Party and Bee n Bee Limited. 106.The and 2 nd Respondents' confirm that the said BNX Partners Limited was not in any way involved in the transaction between the Ist Interested Party and Bee n Bee Limited, as indeed the said company has not in any way been adversely mentioned and/or implicated in the impugned criminal proceedings, 107.It is his submission that notwithstanding any similarity of the directorship in any two companies, the inference that two separate companies are the same entity is a misapprehension of the legal personality of companies. Indeed, the principle of Legal Personality of Companies has been upheld by various Courts of law since time immemorial and as such it is trite law that companies are legal entities that are distinct from their directors and/or shareholders as espoused in the locus classicus case of Salomon vs Salomon [18971 AC Z8. 108.BNX Partners Limited, is a separate legal entity from Bee n Bee Kenya Limited notwithstanding any similarity in directorship. 109.BNX Partners Limited and/or its directors cannot in any way whatsoever be held liable for any adverse actions and/or omissions undertaken by Bee n Bee Limited. 110.The interested parties further allege that the exparte Applicant is involved in the management of the said BNX Partners Limited on account of a purported website, without producing any official search to prove the said allegation, which search which in any event according to the Applicant being electronic evidence, is inadmissible for failure to comply with the mandatorily provisions of Section 106B of the Evidence Act. 111.He submits that the 1 st Respondent, at the 2 nd Interested party's behest, instituted impugned unlawful criminal proceedings against the ex-parte Applicant, in pursuing a claim that does not lie in law; betraying the ulterior motives behind the impugned prosecution, by brandishing the sword of punishment in criminal law, rather than in any genuine desire to punish for a crime committed. 112.Article 157(11), Constitution as read Articles 165(2); & (6) of the Constitution, Courts of law have on numerous occasions, gone ahead to quash criminal proceedings instituted by the 1st Respondent on various grounds including where the discretion to charge has been exercised in bad faith, oppressively, capriciously or for interest antithetical to public interest, such as in the case of Republic v Office of the Director of Public Prosecution & 5 others ExParte Sylvia Wairimu Njuguna [2018] eKLR, wherein the Learned Judge in quashing the subject charges instituted by the 1st Respondent, held as follows: "In my view, the exercise of discretion though quasy-judicial, the decision of what steps ought to be taken to enforce the criminal law is placed on the officer in charge of prosecution and it is not the rule, and hopefully it will never be, that suspected criminal offences must automatically be the subject of prosecution since public interest must under our constitution be considered in deciding whether or not to institute prosecution...the discretion is given to the Director of Public Prosecution and where it is shown that what he is exercising is not his own discretion but another's discretion he shall have abdicated his duty and this Court will be entitled to intervene. This must be so because section 7(2)(a) of the Fair Administrative Action Act empowers a court or tribunal to review an administrative action or decision, if the administrator acted on the direction of a person or body not authorised or empowered by any written law to give such directions; the administrative action or decision in issue was taken with an ulterior motive or purpose calculated to prejudice the legal rights of the applicant; the administrative action or decision was made in bad faith; or that the administrative action or decision is taken or made in abuse of power." 113.He also relies in the case of Justus Mwendwa Kathenge v Director of Public Prosecution & another [2019] eKLR the Learned Judge while quashing the subject charges instituted by the 1st Respondent against the petitioner therein, having been satisfied that the petitioner's intended prosecution violated his right to fair hearing and equal treatment before the law, held as follows: "The Court of Appeal in a majority decision in the case of Prof Njuguna Ndungu v The Ethics and Anti-Corruption Commission (EACC) & others [2018] eKLR stated that the court has to scrutinize the charges, the relevant documents including and reach a conclusive and objective decision on whether or not the charges have any legal or factual foundation and realistic prospect of conviction. On that note, I am not satisfied with the evidential threshold and it is not proper that a person be prosecuted for the sake it. Any mounted prosecution must serve a legitimate interest of justice and nothing else. The petitioner's intended prosecution violated his right to fair hearing and equal treatment before the law. In the circumstances and for the above reason, I am satisfied that the petition is merited and is allowed as follows. Consequently, I am satisfied that this petition has merit and must succeed. The petition dated is hereby allowed and I make the following orders." 114.He also places reliance on the case of Agnes Ngenesi Kinyua aka Agnes Kinywa v Director of Public Prosecution & another [2019] eKLR wherein the Learned Judge while quashing the subject charges instituted by the 1st Respondent against the petitioner therein, having been satisfied that the subjectinvestigations did not unearth any material upon which the prosecution reasonably believed that it could successfully mount a prosecution, held as follows:"It follows that the burden is on the prosecutor to show by way of admissible evidence that he is in possession of material that disclose the existence of a prosecutable case since as was held in Stanley Munga Githunguri vs. R ["1986] eKLR at page 18 and 19 by a three bench HighCourt constituted of Ag. . Chief Justice Madan and Justices Aganyanya and Gicheru: "A prosecution is not to be made good by what it turns up. It is good or bad when it starts. "The prosecution of the petitioner cannot be permitted to proceed in the hope that something positive might come out of it. The prosecution must show upfront that it has a prosecutable case based on the investigations conducted upon a complainant lodged with those who are empowered to do so unless it is shown that the matter was in the public domain and result from investigations unearthed material upon which the prosecution reasonably believed that it could successfully mount a prosecution. In this case there is no such material. Accordingly, I find merit in this petition," From the foregoing, it is our humble submission that, indeed the impugned criminal proceedings instituted against the ex-parte Applicant in Milimani Criminal Case No. E034 of 2025 - Republic v Nicholas Alexander Nesbitt & Other are anchored on a clear abuse of prosecutorial discretion by the 1st Respondent designed to achieve certain extraneous goals, certainly not those recognized under the Constitution and the Office of the Director of Public Prosecutions Act for founding prosecutions; which constitutes an abuse of the legal process and would entitle this Honourable Court to intervene and bring to an end such wrongful exercise of discretion. With the preceding, the ex-parte Applicant invokes the Honorable Court's solemn Constitutional authority to restrain the legal wrong/injury visited upon him, and grant appropriate reliefs so that the ex-parte Applicant is not rendered, helpless or hapless before the seat of justice. 115.The applicant submits that the criminal prosecution is anchored on a clear abuse of prosecutorial discretion by the 1st Respondent designed to achieve certain extraneous goals, certainly not those recognized under the Constitution and the Office of the Director of Public Prosecutions Act for founding prosecutions. 116.The above abuse of the legal process and entitled this Court to intervene and bring to an end such wrongful exercise of discretion. 117.He submits that contrary to the Respondents and Interested Parties' assertion it is not available in law for them to argue that the ex-parte Applicant should be arrested and charged so that he can raise whatever defences he has in a trial court, for the reason that the Court has a constitutional duty to ensure that a flawed threatened trial is stopped in its tracks if it is likely to violate any of the ex-parte Applicants' fundamental rights. 118.Reliance is placed in the case of Republic v Director of Public Prosecutions & 2 others Ex-parte Praxidis Namoni Saisi [2016] eKLR wherein the Learned Judge in quashing the subject criminal proceedings instituted by the 1st Respondent against the ex-parte Applicant, held as follows:“As was held in R. vs. The Judicial Commission into the Goldenberg Affair and 2 Others exp Saitoti HC Misc Appl. 102 of 2006: "It is not good for the DPP to argue that the Applicant should be arrested and charged so that he can raise whatever defences he has in a trial court. The Court has a constitutional duty to ensure that a flawed threatened trial is stopped in its tracks if it is likely to violate any of the applicants' fundamental rights. That was the position in Williams vs. Spautz [1992] 66 NSWLR 585, at 600, where the High Court of Australia consisting of seven judges observed that: "If the proceedings obviously lack any proper foundation in the sense that there is no evidence capable of sustaining a committal, they will obviously be vexatious and oppressive. In such a case, the proceedings themselves are an abuse of the process of the Local Court and will inevitably result in the discharge of the defendant...And that the charges against the defendant lack any foundation, the Supreme Court would be justified in intervening to halt the proceedings in limine in order to prevent the defendant from being subjected to unfair vexation and oppression... For a man to be harassed and put to the expense of perhaps a long trial and then given an absolute discharge is hardly from any point of view an effective substitute for the exercise by the court [of its inherent power to prevent abuse of its process." Therefore, where it is clear to the Court that based on the admitted factual scenario the charges leveled against the applicant are far-fetched it would not be permissible for the Court to permit the applicant face the charges simply because she will have an opportunity of defending herself. It is therefore clear that the said three counts facing the applicant are untenable." 119.It in the public interest or in the interest of the administration of justice to use the criminal justice process as a pawn in civil disputes. 120.Indeed, 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, as was established by the Court of Appeal, in the case of Commissioner of Police & The Director of Criminal Investigation Department & another v Kenya Commercial Bank Limited & 4 others [2013] eKLR, wherein the Court held as follows:“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," 121.In the case of Republic v Director of Criminal Investigations Exparte Harrison Nyota Ngunyi [2017] eKLR the Learned Judge while quashing the subject charges instituted by the 1st Respondent against the ex-parte Applicant therein, having been satisfied that the criminal justice was being used as a pawn in personal civil feuds and individual vendetta, held as follows: "To mу mind the police ought not to be used by parties to a purely civil dispute to put facilitate the resolution of such disputes by using the criminal process as a leverage in order to pin down the parties or one of the parties to settle the dispute. 122.In Kuria & 3 Others vs. Attorney General [2002] 2 KLR 69, the High Court held: "The Court has power and indeed the duty to prohibit the continuation of the criminal prosecution if extraneous matters divorced from the goals of justice guide their instigation. It is a duty of the court to ensure that its process does not degenerate into tools for personal score settling or vilification on issues not pertaining to that which the system was even formed to perform...A stay (by an order of prohibition) should be granted where compelling an accused to stand trial would violate the fundamental principles of justice which underlie the society's senses of fair play and decency and/or where the proceedings are oppressive or vexatious...The machinery of criminal justice is not to be allowed to become a pawn in personal civil feuds and individual vendetta. It is through this mandate of the court to guard its process from being abused or misused or manipulated for ulterior motives that the power of judicial review is invariably invoked so as to zealously guard its (the Court's) independence and impartiality..." 123.In the case of Wambugu & 5 others v Director of Public Prosecutions & 2 others; Highchem East Africa Limited (Interested Party) (Petition 219 of 2019) [2025] KЕНС 2691 (KLR) (Constitutional and Human Rights) (10 March 2025) (Judgment) wherein the Learned Judge while quashing the subject charges instituted by the 1st Respondent against the petitioners therein, having been satisfied that the criminal proceedings were being undertaken to assist in getting evidence for purposes of coercing the petitioners into admitting the civil claim, held as follows: "Taking into account the observations in the decisions referred to above, and considering the material placed before this Court, the long history and the relationship between the parties, including the civil case (HCCC No. 310 of 2017) pending before the Commercial Division where the issues of ownership of the agency contract with Kronos and commissions paid are at the centre of that case, I agree with the petitioners that the investigations and indeed any intended prosecution is not being undertaken in the interest of criminal justice system...The criminal proceedings were being undertaken to assist either in getting evidence for purposes of coercing the petitioners into admitting the civil claim, or to influencing the outcome in the civil case pending in the Commercial Division. In the circumstances and in the interest of justice, it would be proper for the civil court to resolve the issues placed before it as this will determine the rights of parties regarding the agency contract and attendant commissions. 124.He submits that the disregard of the ongoing arbitration proceedings before the Hon. Abritrator, which would conclusively resolve the crux of the issues in controversy in the subject criminal proceedings and the obligations accruing against either party, betrays the absence of legal cause to investigate and prosecute the ex-parte Applicant — which illegality this Hon. Court cannot countenance to proceed. He submits that this evinces patent irreversible violations of the ex-parte Applicants' fundamental freedoms, warranting the immediate grant of the orders sought herein. 125.The charges preferred against him in Milimani Criminal Case E034 of 2025 are actuated by the desire to punish on account of his refusal to cede to the 2 nd Interested party's demand to repay the sum advanced to Bee n Bee Kenya Limited, on the basis that the ex-parte Applicant had introduced the 2 nd Interested Party to the said Bee n Bee Kenya Limited. 126.Further he submits that the charges preferred against do not lie under the Companies Act, for want of sanction, as such it cannot be just, lawful, fair and/or equitable to subject the ex-parte Applicant to the rigors and vagaries of a criminal trial against such grave violations. 127.He submits that the 1st Respondent's decision to charge the ex-parte Applicant amounts to a violation of Article & (b), 27(1), 40(1), 47, 157, 232 & 244 of the Constitution as read with Section 4 and 7(2), Fair Administrative Actions Act that enjoins the 1st Respondent to observe and apply the rule of law, as well as equity. 128.He submits that the impugned orders and/or proceedings in Milimani Criminal Case No. E034 of 2025 should be quashed as the ex-parte Applicant has indeed proved that the same have been instituted for an improper and extraneous purpose. 1st And 2nd Respondent's case 129.They advance their case through the Replying Affidavit of sgt Evans Gitonga a police officer attached to the Directorate of Criminal Investigations (DCT) Serious Crime Unit stationed at DCI Headquarters, dated 9th June,2025. 130.The investigation officer in respect to Milimani Criminal Case number E034 OF 2025 R vs Nicholas Alexander Nesbitt & Others before Milimani Chief Magistrate Court giving rise to the instant Application. 131.It is his case that in the month of August 2023, the complainants in this case namely Vimal Shah and Bidco Africa Limited entered into a business of converting Kshs into US Dollars. 132.The complainant deposited approximately kshs 102,437,500/= for the business which money was deposited at Standard Chartered Bank in which Bee N Bee account belonged to Boytorun Mehment Bulent And Formerly Nicholas Alexander Nesbitt. 133.Investigations were launched into the complaint and it was established that the company BEE N BEE was not registered to carry out forex business as claimed. The said information was received from Capital Markets Authority. 134.The applicant was accorded a chance to record his statement on 9th October 2023 whereby he acknowledged having known the complainant for 15 years and also introduced him to BEE N BEE company owned by Boytorun Mehment Bulent in which he was formerly a director. 135.The two thereby entered into a trade finance agreement on the 23d May 2023 signed by Bee N Bee And Bidco Africa Limited.It is his case that the applicant herein was fully aware of the transactions between the complainant and BOYTORUN MEHMENT BULENT having introduced them and once the complainant deposited approximately kshs 102,437,500/= into BEE N BEE account, the said money was redirected to PERSHING VC Group Limited held at Credit Bank Kenya as indicated in the applicant's statement. 136.The business did not go as planned as Pershing VC Group Limited failed to remit the dollars as indicated to BEE N BEE and thus came the push and pull until both parties went for arbitration and BEE N BEE was supposed to remit its portion which it failed to. 137.Upon review the file met the threshold of the evidence in the investigation file, the DPP established that for prosecution and therefore a decision to charge was made within Article 157 of the Constitution, the ODPP Act, the National Prosecution Policy and all other enabling legislation. 138.The Director of Public Prosecutions did not abuse his Office, abrogate, breach, infringe on any provision of the Constitution or any human and fundamental rights of the Petitioner or any other written law or regulations made there under. 139.The court should only interfere with the independent discretion of the Respondent if it is shown that the Respondent in exercise of his powers it violates the Constitution, or amounts to an abuse of process. The Respondent’s Submissions: 140.On the Issue of whether the arraignment of the exparte applicant in Court was lawful, they submit that indeed, it followed the due process. 141.Under Article 157(6) of the Constitution, the DPP is mandated to institute and undertake criminal proceedings against any person before any court.(6)The Director of Public Prosecutions shall exercise state powers of prosecution and may-(a)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.” 142.In the case of Pauline Raget Adhiambo Agot v DPP and 5 Others (2010) Petition No. 446 of 2015 the court stated:“It must first be stated that the clear intention of the Constitution was to ensure that the Office of the Director of Public Prosecutions was free of any interference or meddling. No person or body including the court ought to instruct or direct the 1st Respondent on how to conduct its business as to investigating crime and prosecuting offenders. Indeed, it is the 1st Respondent who is enjoined under Article 157(4) of the Constitution to direct the National Police Service to investigate any criminal activities. On the other hand, members of the public are also morally obligated to report incidents of crime to the ODPP and DCI. 143.In 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, Nairobi, in determining whether the ODPP and DCI had abused their statutory and constitutional powers, the Learned Judge stated that:“…. the Police have a duty to investigate any complaint once a complaint is made. Indeed, the police would be failing in their constitutional mandate to detect and prevent crime. The Police only need to establish reasonable suspicion before preferring charges.The rest is left to the trial court. 144.Article 157(4) provides that: - (4) The Director of Public Prosecutions shall have power to direct the inspector-general of the national police service to investigate any information or allegation of criminal conduct and the inspector general shall comply with any such direction. 145.However, article 157(11) stipulates that: (11) In exercising the powers conferred by this article, the director of public prosecutions shall have regard to the public interest, the interests of the administration of justice and the need to prevent and avoid abuse of the legal process. 146.The Respondents submit that the arraignment of the exparte applicant in Court followed the due process, the DPP was presented with a complete investigative file and made the Decision to Charge – this decision was not made on a whim but guided by the Constitution, the ODPP Act, 2012 and the Decision to Charge Guidelines. The ex-parte applicant cannot therefore fault the Respondent as due process was followed. 147.The DPP in its Guidelines on the Decision to Charge, 2019 (the Guidelines to charge) also correctly captured the role of the prosecutor once investigations are completed. The 1st Respondent in making the decision to charge the petitioner acted within his constitutional mandate. 148.Upon concluding investigations, the DCI established that there was a reasonable suspicion that an offence had been committed, hence prompting them to forward the investigation file to the 1st Respondent for review and directions. In the Michael Monari Case (Supra)the court stated that the police only need to establish reasonable suspicion that an offence had been committed before any charges can be preferred. 149.In the case of Cascade Company Limited vs Kenya Association of Music Production (KAMP) & Others, Petition No. 7 of 2014 High court, Murang’aThe court stated as follows-“…. In my view, as long as the enabling legislation is constitutional, the respondent’s actions ensuing therefrom are lawful unless, of course, it can be demonstrated that the ODPP and DCI have in their actions, breached those very provisions or have acted ultra vires to the act. Simply put the Respondents should not be inhibited unnecessarily from exercising their constitutional and statutory mandates.” 150.The ex-parte applicant has failed to demonstrate to the court how the Dpp acted contrary to public interest, the interest of the administration of justice or failed to prevent and avoid abuse of the legal process. 151.Whereas the petitioners had the right not to be subjected to an illegal and /or unwarranted criminal process, the DPP was also under a public duty to ensure that offences were prosecuted and those culpable attended to as the law required. 152.That was the balance created by the law and which the court is called upon to take. We rely on the holding Justice A.C Mrima in Maina & 4 others vs Director of Public Prosecutions & 4 others Constitutional Petition E106 & 160 of 2021 (Consolidated) (2022) KEHC 15 (KLR) (Constitutional and Human Rights) (27 January 2022) (Judgment). 153.The ex-parte applicant has failed to show that in making the decision to charge, the 1st Respondent had abrogated any provisions of the Constitution, or any written law, or any rules made thereunder. 154.In the instant case, the ex-parte applicant has not demonstrated that in deciding to charge the ex-parte applicant, the 1st Respondent breached the provisions of the Constitution or the law. 155.The 1stRespondents’ actions were irrational, and not an abuse of their office. There is no evidence of malice, no evidence of unlawful actions, no evidence of excess or want of authority no evidence of harassment or intimidation or even manipulation of court process so as to seriously deprecate the likelihood that the applicant might not get a fair trial as provided under Article 50 of the Constitution. 156.In the case of Kuria & 3 others v Attorney General [2002] 2 KLR 69, it was observed as follows:There is need to show how the process of the court is being used or misused. There is a need to indicate or show the basis upon which the rights of the applicant are under serious threat of being undermined by the criminal prosecution… just as a conviction cannot be secured without any basis of evidence, an order of prohibition cannot also be given without any evidence that there is manipulation, abuse or misuse of the court process or that there is a danger to the right of the accused person to have a fair trial. 157.The ex-parte applicant is merely inviting the court to analyse the evidence and make a conclusion as to whether there is a case against them or not, which role lies with the trial court. 158.There is no evidence to show that the 3rdRespondents exceeded jurisdiction, breached rules of natural justice or considered extraneous matters or were actuated by malice in undertaking the investigations against the ex-parte applicant. 1st & 2nd Interested Parties' Case 159.Vimal Shah, the 2nd Interested Party and a Director and the Chairman of the 1st Interested Party oppose the Notice of Motion Application dated 9th June 2025. 160.It is his case that he made a complaint to the Directorate of Criminal Investigations following the criminal actions of the Ex-Parte Applicant herein and his co-accused. 161.He directly interacted with the Ex-Parte Applicant and his co-accused in Milimani Criminal Case No. E034 of 2025 - Republic v Nicholas Alexander Nesbit & Others. 162.The decision to charge was approved and the matter is now prosecuted by the 1st Respondent. On or about 18th May 2023, Mr. Nicholas Alexander Nesbitt, the Ex-Parte Applicant and Mr. Bulent Boytorun informed him that they were in a position to provide the 1st Interested Party with USD in exchange for Kenya Shilling currency to finance the running of the company. 163.They entered into Trade Finance Agreement (the "Agreement") on the 23rd day of May 2023 and the same was signed by him on behalf of the 1st Interested Party and by Bulent Boytorun on behalf of Bee N Bee (K) Ltd on the same day. 164.It was agreed that the 1st Interested Party would deposit a sum of Kenya Shillings one hundred and two million four hundred and thirty-seven thousand and five hundred (KES. 102,437,500.00) into Standard Chartered, Kenyatta Avenue Branch, Bank Account number 0102488940900 that belongs to Bee N Bee Kenya Limited. 165.It is case that the Agreement further stipulated that the money deposited would be converted to United States Dollars seven hundred and forty-five thousand (USD 745,000) and the same would be transferred to the 1st Interested Party's bank account the day after the signing of the agreement, that is on 24th May 2023. 166.He argues that it is from the representation of the Ex-Parte Applicant who is a person well known to him that he was induced into entering into the Agreement with the other accused persons in the Trial Court case. 167.The Ex-Parte Applicant understood the fiduciary relationship that he had with him and intentionally manipulated the said relationship to intentionally defraud the 1st Interested Party. 168.The sole intent of the Ex-Parte Applicant and his co-accused in the Trial Court case is to defraud unsuspecting individuals like the 1st Interested Party. 169.This is because after defrauding the 1st Interested Party through the shell company - Bee N Bee (K) Ltd, the Ex-Parte Applicant and Mr. Bulent Boytorun formed another company BNX Partners, that transacts in the same kind of business as Bee N Bee (K) Ltd. 170.It is his case that should the court allow the Application herein, then the same will serve as a gate pass to the Ex-Parte Applicant and his other partners to continue defrauding people. 171.He believes that the public interest will not be served, and therefore this court should desist from interfering with the proceedings of the Trial Court, in its efforts to determine the merits or otherwise of the Trial Court case. 172.If merit is found in the case, then the various penal sanctions will serve as a deterrence to the accused persons and other individuals carrying out the business of defrauding unsuspecting persons. 173.He is not aware of any conspiracies as alleged by the Ex-Parte Applicant to frustrate him and his family or his source of income. 174.Any merits as to the charges levelled in the charge sheet in the Trial Court case should be left to a competent court of law. 175.It is his case that he has no capacity to direct any state organ including the 1st and 2nd Respondents herein contrary to the aversions of the Applicant. 176.The said Respondents are institutions established by the Constitution and therefore, cannot be under the control or direction of any person, leave alone a private citizen. 177.The 1st and 2nd Respondents, exercising their constitutional and statutory obligations, arrived at the decision to charge the various accused persons. 178.Just like the accused persons have rights, so do the complainants and victims in the Trial Court case, including the 1st Interested Party, to own property and earn a living, and also to have their grievances heard and determined by a competent court. 179.He argues that Criminal proceedings can run concurrently with civil proceedings without prejudice to the parties. 180.In exercising my liberty, the interested parties pursued a civil suit through the arbitral process referred to by the Ex-Parte Applicant herein. 181.Among the findings of the Arbitrator in her final award and as highlighted of the Award therein and after considering the evidence presented before her, found and held that: "Accordingly, I FIND and HOLD that to all intents and purposes, Mr. Nik Nesbit represented himself as an agent/ representative of the Respondent. 182.He argues that the finding of the Arbitrator herein, negates all aversions by the Ex-Parte Applicant that the criminal proceedings before the Trial Court is without merit prima facie. 1 St & 2nd Interested Parties' Submissions; 183.He submits that Article 157 (1) explicitly provides for the discretion of the 1st Respondent to exercise their independent decision to charge or not to, based on the evidence presented to it by the investigating agencies, in this case the 2nd Respondent. 184.He further submits that Article 157 (10) of the Constitution 2010 ensures that the DPP has complete independence in his decision-making processes, which is vital to protect the integrity of the criminal justice system because it guarantees that any decision to prosecute a person is made free of any external influences. 185.It is therefore imperative that this Honourable respects this constitutional imperative and hesitate to interfere with the functions of the DPP unless there is clear evidence of breach of the Constitution or abuse of discretion to prosecute which the Ex-Parte Applicant has failed to demonstrate in the documents submitted in the Application therein. 186.An analsysis of the documents filed by the Ex-Parte Applicant in the Judicial Review Application herein only speaks of an pending civil dispute which should not be a subject of the criminal process as the two are separate and distinct in their very nature. 187.This Honourbale Court is inclined to respect the decision by the DPP to prosecute for on the basis that: it is a constitutional imperative that the constitutional independence of the DPP must be respected, and for the court to intervene, there must be clear evidence of breach of the constitutional duty to act on the part of the DPP or abuse of discretion. 188.Prosecutorial discretion is generally accorded judicial deference and that courts will only interfere in the clearest and most exceptional of cases. 189.The Application by the Ex-Parte Applicant herein does not meet the threshold set as analysed hereinafter to warrant this Honourbale Court to interfere with the discretion of the 1st Respondent. 190.The Supreme Court in Jirongo Vs Soy Developers Ltd & 9 Others Court, citing the Supreme Court of India in RP Kapur v State of Punjab AIR 1960 SC 866, laid down guidelines to be considered by the High Court when reviewing prosecutorial powers. They are as follows: 191.Where institution/continuance of criminal proceedings against an accused may amount to the abuse of the process of the court or that the quashing of the impugned proceedings would secure the ends of justice; or(11)Where it manifestly appears that there is a legal bar against the institution or continuance of the said proceeding, e.g. want of sanction; or(111)Where the allegations in the First Information Report or the complaint taken at their face value and accepted in their entirety, do not constitute the offence alleged;(IV)Where the allegations constitute an offence alleged but there is either no legal evidence adduced or evidence adduced clearly or manifestly fails to prove the charge. 192.The 1st Respondent, exercising their authority as delegated powers set out under Article 157 of the Constitution did not act in excess of its powers.An order for stay of proceedings, particularly for stay of proceedings in criminal proceedings like the case herein, is made sparingly and only in exceptional cases and that it is upon the applicant who seeks to stop the criminal proceedings to prove that unless stay of proceedings in question is granted, there is imminent threat of the impugned proceedings being undertaken and determined before the occurrence of an event that would render the outcome of the later nugatory. That the applicants have not disclosed a prima facie case to warrant the grant of the order sought. 193.This Court in ACEC APPEAL NO. E016 OF 2025: Bob Kephas Otieno & 50thers Vs Ethics and Anti Corruptions Commissions, noting the amplitude of the powers of the 1st Respondent to prosecute and the consequences which they carry, cited the Supreme Court of India in Maharashtra vs Arun Gulab Gawali which in its opinion on the discretionary powers of the DPP to prosecute opined that 'these powers should be exercised sparingly and should not carry_ an effect of frustrating the judicial process. ' 194.Further, the Court cited The Supreme Court of India in State of West Bengal & Others vs Swapan Kumar Guha& Others, AIR, 1982, SC 949, Pepsi Foods Ltd & Another vs Special Judicial Magistrate & Others AIR 1998, SC 128 & G. Ugar Suri & Ano vs State of U.P & Others, AIR 2000 Sc 754 in which the Court delineated the law in the following terms:“The power of quashing criminal proceedings has to be exercised very sparingly and with circumspection and in the rarest of rare cases and the Court cannot be justified in embarking upon an inquiry as to the reliability or otherwise of allegations made in the complaint, unless the allegations are so patently absurd and inherently improbable so that no prudent person can ever reach such a conclusion. The extraordinary and inherent powers of the Court do not confer an arbitrary jurisdiction on the Court to act according to its whims or caprice. However, the Court, under its inherent powers, can neither intervene at uncalled for stage nor can it 'soft-pedal the course of justice ' at a crucial stage of proceedings The power of judicial review is discretionary, however, it must be exercised to prevent the miscarriage of justice and for correcting some grave errors and to ensure that esteem of administration of justice remains clean and pure. However, there are no limits of the power of the court, but the more the power, the more due care and caution is to be exercised in invoking these powers.Criminal proceedings commenced to advance other gains other than promotion of public good are vexatious and ought not to be allowed to stand. The word "vexatious " means "harassment by the process of law, " "lacking justification " or with "intention to harass. 195.It signifies an action not having sufficient grounds, and which therefore, only seeks to annoy the adversary. The hallmark of a vexatious proceeding is that it has no basis in law (or at least no discernible basis); and that whatever the intention of the proceeding may be, its only effect is to subject the other party to inconvenience, harassment and expense, which is so great, that it is disproportionate to any gain likely to accrue to the claimant; and that it involves an abuse of process of the court. The Charge that the accused person in the Trial Court faced are not vexatious and are found in law. The charge drawn by the 1st Respondent is as a result of intense hard work on the part of the investigating agencies who forward the police file to the office of the 1 st Respondent for their consideration. 196.There is no proof that the 2nd Respondent in conducting its investigations acted illegally and in contravention to its powers as set out in the law. 197.The ex-parte applicant has not demonstrated that there was no sufficient evidence or factual basis to justify the prayers sought herein. 198.It is not the function of this court to weigh the veracity of the evidence. We submit further that the 1st Respondent equipped with the relevant personnel trained on matters of the law, in their professional judgment, considered the provisions of the law and therefore faced in the admissibility substantial and reliable evidence that a criminal offence known to the law has been committed by the accused. It has not been established that the facts presented in this case do not disclose an offence known to the law. 199.Section 193A. of the Criminal Procedure Code provides for: "Concurrent criminal and civil proceedings " thus:Notwithstanding the provisions of any other written law, the fact that any matter in issue in any criminal proceedings is also directly or substantially in issue in any pending civil proceedings shall not be a ground for any stay, prohibition or delay of the criminal proceedings. 200.If there was a civil suit in court, the existence of a parallel civil case is not bar to criminal proceedings. 201.The offence being investigated is known to the law, hence, the cited provision. The conduct under investigation can attract a criminal sanction if proved. 202.The orders of Certiorari sought by the Ex-parte Applicant herein is a discretionary remedy, which this court should refuse to grant. 203.They submit that the court should also consider the plight of the compliant in the Trial Court who also seek justice from the Court and that the Court weighs the complainant's rights against those of the accused person to see whether or not the remedy is the most efficacious in the circumstances obtaining. 204.The writ of Prohibition arrests the proceedings of any tribunal, corporation, board or person, when such proceedings are without or in excess of the jurisdiction of such tribunal, corporation, board or person. 205.A prohibiting order is similar to a quashing order in that it prevents a tribunal or authority from acting beyond the scope of its powers. The key difference is that a prohibiting order acts prospectively by telling an authority not to do something in contemplation. However, as submitted in these submissions, the illegality of the impugned decision by the 1st Respondent has not been established nor has it been established that the Respondents acted illegally or in excess of their powers nor has the decision to prosecute been shown to be illegal, irrational or a nullity. Analysis and determination; 206.Upon perusing the parties’ pleadings and the rival submissions, the following issues commend themselves for determination;1.Whether this court has jurisdiction.2.Whether the applicants have made out a case for the grant of the orders sought.3.Who shall bear the costs.Whether this court has jurisdiction. 207.The question of jurisdiction is well established in the locus classicus, Owners of the Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd where the Court pronounced itself as such:“I think it is reasonably plain that a question of jurisdiction ought to be raised at the earliest opportunity and the court seized of the matter is then obliged to decide the issue right away on the material before it. 208.The applicants is in the right court under Order 53 of the Civil Procedure Rules and Article 165 of The Constitution.Article 165(6) of the Constitution provides that this Court has supervisory jurisdiction over any person, body or authority that exercises a quasi-judicial function or a function that is likely to affect a person’s rights. 209.In order to succeed in this application, the applicants have to prove that its case falls within the parameters and principles that settled in the case of Pastoli vs Kabale District Local Government Council & Others, (2008) 2 EA 300, that:“In order to succeed in an application for Judicial Review, the Applicant has to show that the decision or act complained of is tainted with illegality, irrationality and procedural impropriety: See Council of Civil Service Union v Minister for the Civil Service [1985] AC 2; and also, Francis Bahikirwe Muntu and others v Kyambogo University, High Court, Kampala, Miscellaneous Application Number 643 of 2005 (UR).Illegality is when the decision-making authority commits an error of law in the process of taking the decision or making the act, the subject of the complaint. Acting without Jurisdiction or ultra vires, or contrary to the provisions of a law or its principles are instances of illegality….Irrationality is when there is such gross unreasonableness in the decision taken or act done, that no reasonable authority, addressing itself to the facts and the law before it, would have made such a decision. Such a decision is usually in defiance of logic and acceptable moral standards: Re An Application by Bukoba Gymkhana Club [1963] EA 478 at page 479 paragraph “E”.Procedural impropriety is when there is failure to act fairly on the part of the decision-making authority in the process of taking a decision. The unfairness may be in non-observance of the Rules of Natural Justice or to act with procedural fairness towards one to be affected by the decision. It may also involve failure to adhere and observe procedural rules expressly laid down in a statute or legislative Instrument by which such authority exercises jurisdiction to make a decision. (Al-Mehdawi v Secretary of State for the Home Department [1990] AC 876).” 210.In the case of Republic v Attorney General & 4 others Ex-parte Diamond Hashim Lalji and Ahmed Hasham Lalji [2014] eKLR the court held that:“Judicial review applications do not deal with the merits of the case but only with the process. In other words, judicial review only determines whether the decision makers had the jurisdiction, whether the persons affected by the decision were heard before it was made and whether in making the decision the decision maker took into account relevant matters or did take into account irrelevant matters. It follows that where an Applicant brings judicial review proceedings with a view to determining contested matters of facts and in effect urges the Court to determine the merits of two or more different versions presented by the parties the Court would not have jurisdiction in a judicial review proceeding to determine such a matter and will leave the parties to resort to the normal forums where such matters ought to be resolved.The Court in judicial review proceedings is mainly concerned with the question of fairness to the Applicant in the institution and continuation of the criminal proceedings and once the Court is satisfied that the same are bona fides and that the same are being conducted in a fair manner, the High Court ought not to usurp the jurisdiction of the trial Court and trespass onto the arena of trial by determining the sufficiency or otherwise of the evidence to be presented against the Applicant.Where, however, it is clear that there is no evidence at all or that the prosecution’s evidence even if were to be correct would not disclose any offence known to law, to allow the criminal proceedings to continue would amount to the Court abetting abuse of the Court process by the prosecution.” 211.The powers of the ODPP Section 35 of the National Police Service Act which sets the duties out the Directorate of Criminal Investigations as below;“To collect and provide criminal intelligence; undertake investigations on serious crimes including homicide, narcotic crimes, human trafficking, money laundering, terrorism, economic crimes, piracy, organized crime, and cyber-crime among others; maintain law and order; detect and prevent crime; apprehend offenders; maintain criminal records; conduct forensic analysis; execute the directions given to the Inspector-General by the Director of Public Prosecutions pursuant to Article 157 (4) of the Constitution; co-ordinate country Interpol Affairs; investigate any matter that may be referred to it by the Independent Police Oversight Authority; and perform any other function conferred on it by any other written law.” 212.In the case of Republic vs Commissioner of Police and Another ex parte Michael Monari & Another (2012) eKLR where it was held:“The police have a duty to investigate on any complaint once a complaint is made. Indeed, the police would be failing in their constitutional mandate to detect and prevent crime. The police only need to establish reasonable suspicion before preferring charges. The rest is left to the trial court. As long as the prosecution and those charged with the responsibility of making the decisions to charge act in a reasonable manner, the High Court would be reluctant to intervene". 213.The power to investigate crime is an important component of the criminal justice system. The police are under a duty under the National Police Act, to investigate crimes whenever they reported. 214.To stop the criminal proceedings through judicial review orders without justification would usher in anarchy. An aggrieved applicant has to tendered evidence that would warrant the issuance of the orders sought. 215.Judicial review jurisdiction, was discussed in the Ugandan case of Pastoli vs KabaleDistrict Local Government Council & Others, (2008) 2 EA 300, where it was held that:“In order to succeed in an application for Judicial Review, the applicant has to show that the decision or act complained of is tainted with illegality, irrationality and procedural impropriety: See Council of Civil Service Union v Minister for the Civil Service [1985] AC 2; and also, Francis Bahikirwe Muntu and others v Kyambogo University, High Court, Kampala, Miscellaneous Application Number 643 of 2005 (UR).Illegality is when the decision-making authority commits an error of law in the process of taking the decision or making the act, the subject of the complaint. Acting without Jurisdiction or ultra vires, or contrary to the provisions of a law or its principles are instances of illegality….Irrationality is when there is such gross unreasonableness in the decision taken or act done, that no reasonable authority, addressing itself to the facts and the law before it, would have made such a decision. Such a decision is usually in defiance of logic and acceptable moral standards: Re An Application by Bukoba Gymkhana Club [1963] EA 478 at page 479 paragraph “E”.Procedural impropriety is when there is failure to act fairly on the part of the decision-making authority in the process of taking a decision. The unfairness may be in non-observance of the Rules of Natural Justice or to act with procedural fairness towards one to be affected by the decision. It may also involve failure to adhere and observe procedural rules expressly laid down in a statute or legislative Instrument by which such authority exercises jurisdiction to make a decision. (Al-Mehdawi v Secretary of State for the Home Department [1990] AC 876).” 216.The forgoing accords with Article 47 of the Constitution, which provides for the right to fair administrative action, and Section 7 of the Fair Administrative Action Act in this regard provides that any person who is aggrieved by an administrative action or decision may apply for review of the administrative action or decision. 217.In the case of Republic vs Commissioner of Police and Another ex parte Michael Monari& Another, [2012] eKLR where it was held that:“the police have a duty to investigate on any complaint once a complaint is made. Indeed, the police would be failing in their constitutional mandate to detect and prevent crime. The police only need to establish reasonable suspicion before preferring charges. The rest is left to the trial court. The predominant reason for the institution of the criminal case cannot therefore be said to have been the vindication of the criminal justice. As long as the prosecution and those charged with the responsibility of making the decisions to charge act in a reasonable manner, the High Court would be reluctant to intervene”. 218.The Applicant has failed and I so hold to prove that the respondents acted illegally, unlawfully or through procedural impropriety in the way the prosecution is being conducted. 219.The Court ought not to usurp the Constitutional mandate of the director of public prosecution without sound legal reasons which are lacking in the instant application and I so hold. The Victims’ Rights; 220.This court is cognizant of the fact that there is need to uphold victims’ rights and this court is under a duty to promote access to justice which includes the rights of victims as highlighted under the Victim Protection Act. 221.Section 9(2) (a) of the Victims Protection Act Provides that victims assist the courts to obtain a clear picture of what happened (to them) and how they suffered as a result of the offenders conduct or omission. 222.Victim participation should however be meaningful and undertaken in a manner and form that contributes to the justice process. 223.Article 50 of the constitution provides for the right to fair hearing. Victims of crime are entitled to the right to fair hearing and they do precipitate in proceedings. This was settled by the Supreme Court in the case of Joseph Lendrix Waswa v Republic [2020] eKLR. 224.The 2nd interested party in exercise of his right to access to justice lodged a complaint against the applicants with the Respondents being the statutory authority as a victim of an offense. 225.This was done on behalf of the 1st interested Party. This culminated in the impugned criminal proceedings which the applicants seek to quash. 226.This court is of the strong view that by filing a Replying Affidavit and submissions raising weight issues, the interested parties are not busy bodies. They are keen on pursuing justice. 227.I am satisfied that the interested parties as victims have an interest and a legitimate expectation in the outcome of the pending criminal case. 228.Allowing the Application will deny the interested parties who are the complainants in the impeached criminal case their right to fair hearing and I so hold. The Concurrent Running of Civil Suit and Criminal Suit; 229.On another front, the Applicant seek to halt the criminal proceedings because there exists a civil process in the Arbitration that is predicated on the issues forming the substratum of the impugned criminal case. 230.Section 193A of the Criminal Procedure Code on this issue provides that, “notwithstanding the provisions of any other written law, the fact that any matter in issue in any criminal proceedings is also directly or substantially in issue in any pending civil proceedings shall not be a ground for any stay, prohibition or delay of the criminal proceedings." 231.The concurrent existence of the criminal proceedings and civil proceedings does not, ipso facto, constitute an abuse of the process of the court. 232.An abuse of court would have arisen had the applicant proved that the commencement of the criminal proceedings was meant to force them to submit to the civil claim in which case the institution of the criminal process would have been for the achievement of a collateral purpose other than its legally recognised aim. It is not the case here. 233.It was the applicant’s case that in February, 2023, he in good faith introduced one Mr. Bulent Boytorun, a director at Bee n Bee Kenya Limited to the 2nd Interested Party, a director at the 1st Interested Party whereupon Mr. Bulent Boytorun offered to assist the 1st Interested Party in securing large volumes of US Dollars. 234.He reiterated that upon introducing Mr. Bulent Boytorun to the 2nd Interested Party, he had no further role to play in any subsequent Agreement and/or transaction between the aforesaid parties. 235.The court notes that the applicant argued that he is troubled by the fact that the Arbitral award made an adverse finding and/or determination to the effect that he was purportedly an agent of Bee n Bee Kenya Limited in respect of the transaction between the 1st Interested Party and Bee n Bee Kenya Limited, which adverse finding is completely and utterly factually incorrect. The applicant tendered no evidence to show that the award has been set aside. 236.His argument that it is certainly clear that he is not guilty of any wrong doing whatsoever, having not been a party nor in any way privy to the Agreement between the 1st Interested Party and Bee n Bee Kenya Limited, which culminated in the criminal charges herein being unlawfully preferred against him is an issue that will be determined by the trial court. 237.The court notes that in criminal Law, the offenders can be charged and found guilty depending on the level of their participation or the role played in the commission of the crime under investigation or prosecution. One can the a principal, accomplice, accessory or a conspiracy to commit a crime. 238.This court cannot determine and has no jurisdiction in any event to determine or interfere with the ODPP’s decision to charge the applicant in whatever capacity that it did. 239.The Applicant has not proven that the investigations, the decision to charge them and the prosecution were actuated by malice and/or bad faith. That is the only time that the court would have interfered with the discretion. 240.In his evidence the applicant swore in his Affidavit that on or about February, 2023, he in good faith introduced one Mr. Bulent Boytorun, a director at Bee n Bee Kenya Limited to the 2nd Interested Party, a director at the 1st Interested Party whereupon Mr. Bulent Boytorun offered to assist the 1st Interested Party in securing large volumes of US Dollars. 241.The interested parties have persuaded the court that there was a nexus between the Applicant, the lost funds, the arbitration and the complainant that forms the subject of the impugned criminal proceedings. 242.The Supreme Court in Samson Gwer & 5 others v Kenya Medical Research Institute & 3 others (2020) KLR held as follows:“(49)[49] Section 108 of the Evidence Act provides that, “the burden of proof in a suit or procedure lies on that person who would fail if no evidence at all were given on either side;” and Section 109 of the Act declares that, “the burden of proof as to any particular fact lies on the person who wishes the court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person.” 243.In the instant application, this court is of the view that the applicant did not tender evidence to prove that there was any malice in the manner in which the Respondents acted. 244.He did not prove to the court that there were any ill intentions on the part of the Respondents in prosecuting them in the criminal court. The Applicant failed to demonstrate to the satisfaction of the court that the Respondents decision to charge him was exercised in bad faith, oppressively, capriciously, or interest antithetical to public interest. 245.The Applicant will have his day in court to cross examine the prosecution witnesses and to advance their case during the trial in the criminal Court and I so hold. 246.In the circumstances, it is my finding and I so hold that the applicant has failed to prove their case. On The Issue of Costs; 247.In Joseph Oduor Anode v. Kenya Red Cross Society, Nairobi High Court Civil Suit No. 66 of 2009; [2012] eKLR Odunga, J. thus observed:“…whereas this Court has the discretion when awarding costs, that discretion must, as usual, be exercised judicially. The first point of reference, with respect to the exercise of discretion is the guiding principles provided under the law.In matters of costs, the general rule as adumbrated in the aforesaid statute [the Civil Procedure Act] is that costs follow the event unless the court is satisfied otherwise. That satisfaction must, however, be patent on record. In other words, where the Court decides not to follow the general principle, the Court is enjoined to give reasons for not doing so. In my view it is the failure to follow the general principle without reasons that would amount to arbitrary exercise of discretion …” [emphasis supplied]. 248.The Civil Procedure Act (Cap. 21, Laws of Kenya), the primary law of judicial procedure in civil matters, thus stipulates (Section 27(1)):“Subject to such conditions and limitations’ as may be prescribed, and to the provisions of any law for the time being in force, the costs of and incidental to all suits shall be in the discretion of the court or judge, and the court or judge shall have full power to determine by whom and out of what property and to what extent such costs are to be paid, and to give all necessary directions for the purposes aforesaid; and the fact that the court or judge has no jurisdiction shall be no bar to the exercise of those powers:Provided that the costs of any action, cause or other matter or issue shall follow the event unless the court or judge shall for good reason otherwise order” [emphases supplied]. 249.The basic rule on attribution of costs is: costs follow the event. But it is well recognized that this principle is not to be used to penalize the losing party; rather, it is for compensating the successful party for the trouble taken in prosecuting or defending the suit. In Justice Kuloba’s words [Judicial Hints on Civil Procedure, at p.94]:“[T]he object of ordering a party to pay costs is to reimburse the successful party for amounts expended on the case. It must not be made merely as a penal measure…Costs are a means by which a successful litigant is recouped for expenses to which he has been put in fighting an action.” 250.In the instant suit, the Applicant shall bear the costs. Determination: 251.The application lacks merit.Order;The application is dismissed with costs. DATED, SIGNED AND DELIVERED VIRTUALLY AT ELDORET THIS 9TH DAY OF JUNE, 2026.………………………………..J. CHIGITI (SC)JUDGE