https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9797

Njeri v Office of Director of Public Prosecutions & 2 others (Petition E265 of 2024) [2026] KEHC 9797 (KLR) (Constitutional and Human Rights) (3 July 2026) (Judgment) Neutral citation: [2026] KEHC 9797 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Law Courts) Constitutional and Human Rights Petition E265 of 2024 RE Aburili, J July 3, 2026 IN THE MATTER OF: ARTICLES 2, 3, 18, 19, 21, 22, 23, 24, 25(8), 27, 28, 29 (d) & (f),40, 46 AND 47 OF THE CONSTITUTION OF KENYA 2010. IN THE MATTER OF: ALLEGED VIOLATION OF RIGHTS AND FUNDAMENTAL FREEDOMS UNDER ARTICLES 27, 28 (d & f) OF THE CONSTITUTION OF KENYA, 2010. IN THE MATTER OF: AN APPLICATION FOR BAIL PENDING ARREST (ANTICIPATORY) UNDER THE COURT’S INHERENT ORIGINAL JURISIDICTION. IN THE MATTER OF: SECTION 123 OF THE CRIMINAL PROCEDURE CODE, CHAPTER 75, LAWS OF KENYA. IN THE MATTER OF: COMMON LAW AND ALL OTHER ENABLING PROVISIONS OF LAW. IN THE MATTER OF: THE POLICE AND ODPP ACT.IN THE MATTER OF: CONSTITUTION OF KENYA [PROTECTION OF RIGHTS AND FUNDAMENTAL FREEDOMS] PRACTICE AND PROCEDURE RULES, 2013 Between Teresiah Njeri Petitioner and The Office Of Director Of Public Prosecutions 1st Respondent The Inspector General Of Police 2nd Respondent The Dci Kasarani 3rd Respondent Judgment 1.The Petition dated 25th May 2024 is grounded on Articles 19, 20 (3) & 4; 21 (1), 22 (3) & 4, 23 (1), 24(1), 25 (a)(b) & (c), 28, 29, 31, 47, 49 (1) (h) and (2) & 50 (2) (a) of the Constitution; Section 123 of Criminal Procedure Code Cap75 and Section 5(2) of the Judicature Act. The Petitioner seeks the following reliefs:1.A Declaration Thatby having her car and phones seized arbitrarily, by forcing her to forcefully give her personal identification numbers to her personal mobile phones, the Respondents violated and infringed on her right to privacy contrary to Article 31 and protection of right to property under Article 40 and Article 50 (2) of the constitution and are therefore unconstitutional.2.A Declaration That by detaining the Petitioner in the police cells for more than 24 hours and the failure to release her on bond or bail in the absence of compelling reasons was a complete violation and infringement of Article 49 (1) (f), (g) and (h) and are therefore unconstitutional.3.A Declaration That by circulating the notice of the most wanted person poster through Joseph Njoroge Thuo a private person without following the law on fair administrative action as provided for in Article 47 of the Constitution, the ODPP Act and the Fair Administrative Action Act, the 2nd Respondent violated the Petitioner’s right to equal protection and equal benefit of the law contrary to Article 27 of the Constitution are therefore unconstitutional.4.A Declaration That by allowing a private person to serve the petitioner herein with a poster of the most wanted person by the Kasarani DCI without giving her written reasons and having not given her prior and adequate notice of the decision to name her as a wanted person, and later charge her, the Respondent violated the Petitioner's right to fair administrative action contrary to Article 47 of the Constitution and are therefore unconstitutional.5.A Declaration That by and without offering the Petitioner an opportunity to be heard or to be released on bail and detaining her for far too long a period, which caused the Petitioner agony, disappointment and embarrassment, and by failing to apologize or acknowledge the pain inflicted upon the Petitioner, showing indifference on the Petitioner’s plight, the Respondent violated the Petitioner's right to human dignity and right not to be subjected to psychological torture and cruel, inhuman or degrading treatment contrary to Articles 28 and 29 of the Constitution and are therefore unconstitutional.6.A Declaration That by failing to admit liability and compensate the Petitioner and otherwise remedy the damage caused, the Respondent violated the Petitioner's right, who was a consumer of its services, to services of reasonable quality, to information necessary for her to gain full benefit from the services and to compensation for loss or injury arising from defects in services contrary to Article 46 of the Constitution and are therefore, unconstitutional.7.A Declaration be and hereby issues that all the acts and/or threatened acts by the Respondents and/or their agents, privies and any other person acting on their instructions of harassment, intimidation, questioning, investigating, charging, prosecuting against the Petitioner by the Respondents amounts to infringement of the Petitioners rights and fundamental freedoms as enshrined in Articles 27(1), 28, 31, 40, 47(1) and 50(1) as well as the contravention of Article 157(11) of the Constitution and are, therefore, unconstitutional.8.The Respondents issues an unqualified apology to the Petitioner for the pain and loss she has suffered as a consequence of the Respondent's actions or omissions.9.The Respondent pays general damages to the Petitioner for violating her rights and for causing her agony, psychological distress and embarrassment. 2.The Petition is predicated on the grounds on the face of the petition and is further supported by the Petitioner’s sworn affidavit dated evenly. The Petitioner’s case is that she is a businesswoman in Nairobi who entered into a business transaction in March 2024 arising from a close personal relationship with Joseph Njoroge Thuo, the Complainant. She states that on 12th March 2024, the Complainant provided capital to boost her business stock but that on 16th May 2024, the Complainant served her with a demand letter designating the funds as a loan and demanding immediate refund. 3.The Petitioner avers that on 20th May 2024, the Complainant sent her a WhatsApp message through his WhatsApp number +254 73xxxxx72 containing a “most wanted list” poster allegedly from the Directorate of Criminal Investigations (DCI) which had not been published on official DCI platforms and threatened her with arrest to force a refund. 4.The Petitioner deposes that she honoured a DCI summons on 21st May 2024 and went to Kasarani Police Station, where she was immediately arrested. She states that the police seized two of her mobile phones (OPPO Reno 10 5G devices) and forced her to provide her passwords and PIN numbers. 5.Additionally, that when the Petitioner’s sister arrived to bring her food and clothes, the police arbitrarily seized and detained her sister’s vehicle, a maroon Mazda Demio, Reg. No. KDN xxxJ. 6.The Petitioner pleads that she was denied bail or bond despite her counsel’s undertakings and was unlawfully held in the cells at Kasarani Police Station for over 48 hours from 22nd May to 24th May 2024 without access to hygiene facilities, which violates the 24-hour constitutional limit. 7.She states that she was eventually arraigned at the Makadara Law Courts and that the investigating officer, No. 92395 PC Winnie Lelei, swore an affidavit labelling her a serial offender and alleging multiple fraud offenses across different police posts, despite being only arraigned to take a plea for a single offense of cheating under Section 315 of the Penal Code. 8.The Petitioner alleges that the Police officers have allegedly threatened her and her family with untold consequences, including re-arrest even if she executes the bail/bond terms granted by the trial court. She contends that the criminal process is being weaponized as a debt-collection tool to advance a personal vendetta rather than for genuine law enforcement, resulting in extensive constitutional violations. 9.She asserts that the intended prosecution is oppressive, vexatious, and initiated in bad faith for ulterior motives rather than the bona fide enforcement of law and order. She states that she has suffered persecution, intimidation, harassment, embarrassment, harm, loss and psychological torture and feared that the threats were being used to harass, intimidate and oppress her and her family, hence the need for constitutional redress. Response to the petition 10.In response to the Petition, the Respondents filed a Replying Affidavit sworn on 12th November 2025 by No. 113544 PC Justin Mutwiri, attached to the DCI at Kasarani Police Station and the Investigating Officer in the matter. He deposes that the Petition emanates from the underlying Makadara Criminal Case No. E2974 of 2024, in which the Petitioner Teresiah Njeri is charged. 11.It is averred that on 17th May 2024, a businessman named Joseph Njoroge Thuo reported a case of obtaining money by false pretence which was recorded under OB No. xx/xx/xx/2024 at Kasarani Police Station. That the complainant stated that the Petitioner approached him to invest Kshs. 2,500,000 to purchase cereals comprising yellow beans and soya beans from Uganda or Zambia to sell for profit in Kenya, claiming extensive business experience. 12.It is averred that on 12th March 2024, the complainant transferred Kshs. 2,500,000 into the Petitioner’s ABSA Bank account No. 20xxxx15 when the Petitioner subsequently indicated that she had travelled to Uganda to procure the stock. That after weeks of non-delivery and failing to reach the Petitioner, the complainant discovered from his business colleagues that the Petitioner did not deal in the cereal business and so, he concluded he had been defrauded. That after the complainant tried to reach the Petitioner in vain, he opted to report the matter to the police. 13.The deponent avers that he immediately commenced investigations to establish the criminality of the Petitioner’s alleged offences and recorded statements from the complainant and witnesses, he obtained money transfer documents and contacted the Petitioner. He avers that the Petitioner went to the DCI office, recorded a statement and admitted to knowing the complainant and receiving the Kshs. 2,500,000, but she maintained that the dispute was strictly of a civil nature. 14.It is deposed that the DCI concluded that the funds were obtained through deceit and fraudulent tricks and the file was forwarded to the Director of Public Prosecutions, the 1st Respondent herein who was satisfied that the evidence supported a charge of Cheating contrary to section 315 of the Penal Code. 15.It is stated that the Petitioner was also booked under OB No. xx/xx/xx/2024 in preparation for arraignment after she failed to raise cash bail. 16.The Respondent asserts that the Petition should be dismissed based on the several grounds. Firstly, that the DCI and ODPP acted strictly within their constitutional mandates to investigate crimes and initiate prosecution based on sufficient evidence and their actions were carried out in good faith, without malice and through lawful procedures. 17.Secondly, the deponent denies that the Petitioner’s rights under Articles 28, 29, 31, 47, 49, and 50 of the Constitution were violated because she was fully informed of the complaint, allowed to record a statement and her presumption of innocence remains intact before the trial court. 18.Thirdly, it is deposed that the Constitutional Court is not the proper forum to evaluate the quality or accuracy of the evidence since these facts must be tested and assessed by the trial court during the criminal proceedings. It is their averment that the Petitioner failed to demonstrate with specificity how the Respondents acted ultra vires, capriciously, or in bad faith. The Respondent argues the Petition is an attempt to circumvent a lawful trial process. 19.Parties took directions to canvass the Petition by way of written submissions. The Petitioner’s Submissions 20.The Petitioner’s submissions are dated 30th April 2026. Counsel for the Petitioner isolated the following issues for determination:i.Whether there is a competent Petition against the Respondents;ii.Whether the Respondents violated the Petitioners constitutional rights;iii.Whether the Petitioner is entitled to the reliefs sought in the Petition; andiv.Who should bear the costs of this Petition. 21.On the first issue, Counsel for the petitioner relies on the case of Karimi v Republic [1979] KEHC 30 (KLR) and Mumo Matemu v Trusted Society of Human Rights Alliance & 5 others (Civil Application 29 of 2014) [2014] KESC 6 (KLR) and submits that the Petition is highly competent because it specifies the exact facts of the Petitioner’s grievances at paragraphs 5–14, the specific constitutional provisions infringed at paragraphs 15–31 and the precise manner of the violations at paragraphs 32–37. That accordingly, it satisfies the Anarita Karimi threshold. 22.On the second issue, Counsel for the Petitioner isolates several distinct alleged violations committed before, during and after the Petitioner’s arrest. Firstly, Counsel cites the right to privacy under Article 31 and submits that upon honouring police summons at Kasarani Police Station, officers demanded the Petitioner’s private mobile phone, PINs and passwords. It is argued that accessing a phone’s confidential contents without a valid court order or search warrant is a gross, unlawful intrusion. 23.Counsel also submits that the right to property under Article 40 was violated when the police arbitrarily seized and detained a motor vehicle Mazda Demio, Reg. No. KDN xxxJ which was driven by the Petitioner’s sister to the station. Counsel notes that the vehicle had no connection to the Cereals business under investigation, making its confiscation unnecessary and unreasonable. 24.Thirdly, counsel submits that the right to police bail under Article 49 (1) (h) was also violated because the Respondents completely denied the Petitioner police bail pending arraignment. Citing R v Joktan Malende and 3 Others Criminal Case No. 55 of 2009, the Petitioner’s counsel submits that bail can only be denied for compelling reasons which entail forceful and cogent grounds. It is submitted that the Petitioner was not a flight risk, nor was she likely to interfere with investigations. 25.Fourthly, Counsel submits that there was unlawful detention beyond 24 hours as provided for under Article 49 (1) (f) of the Constitution because the Petitioner was held in police cells from 22nd May to 24th May 2024, without being presented to a court. That this directly violates the mandatory 24-hour constitutional limit, and the Respondents offered no lawful explanation for the delay. The case of Kausi v Inspector General of Police & 2 others (Criminal Miscellaneous Application E041 of 2025) [2025] KEHC 13412 is cited in support of the right to liberty. 26.Lastly, Counsel submits that there was a prejudicial publication which the complainant circulated, entailing a ‘most wanted’ poster allegedly linked to the DCI. The Petitioner claims this prematurely and publicly branded her a criminal, stripping her of her human dignity and violating her right to a presumption of innocence under Articles 28 & 50 (2) (a) of the Constitution. 27.Citing the South African case of Dendy v University of Witwatersrand, Johannesburg & Others - [2006] 1 LRC 291 as was cited in the case of Imanyara & 2 others v Attorney General (Civil Appeal 98 of 2014) [2016] KECA 557, the Petitioner argues that the primary purpose of a constitutional remedy is to vindicate guaranteed rights and deter future state overreach, rather than just provide compensation. It is submitted that in light of the clear demonstration of how the Respondents herein violated the Petitioner’s rights as guaranteed by the Constitution, Counsel urges the High Court to intervene, grant all declaratory orders and damages sought in the Petition and order that the Respondents bear the full costs of the suit. The Respondent’s Submissions 28.The Respondents’ Submissions are dated 17th November 2025. Learned Counsel Mr. Kerongo Maatwa isolates one issue for determination being: whether the Petition meets the strict legal threshold for constitutional claims established in Anarita Karimi Njeru v. Republic (1979) and Mumo Matemu v. Trusted Society of Human Rights Alliance (2013). Counsel submits that a constitutional petition must state with a reasonable degree of precision the exact nature of the petitioner’s grievance, the specific constitutional provisions allegedly infringed and a clear demonstration of how the respondents violated those provisions. 29.Counsel sets out a chronological synopsis of the events leading to the Petitioner’s arrest and argues that under the National Police Service Act and Article 157 of the Constitution, the Respondents have a legal duty to investigate and prosecute crime. That executing these duties does not constitute a rights violation. 30.Counsel for the Respondents rejects the argument that the dispute is strictly a civil matter and notes that under Section 193A of the Criminal Procedure Code, civil and criminal proceedings can run concurrently. It is submitted that the arguments regarding the insufficiency of evidence or the civil nature of the dispute should be canvassed before the trial at the Makadara Magistrates Criminal court, which is best equipped to handle evidential issues. 31.Counsel denies that there was a violation of the Petitioner’s property rights under Article 40, stating that the two phones were seized lawfully as part of the investigation and a proper inventory was taken. It is also denied that the Respondents violated the right to fair administrative action under Article 47 because the Petitioner was fully informed of the allegations, recorded a statement and her account was considered before charging her. Counsel further submits that there is no evidence of discrimination, degradation of human dignity, or unlawful deprivation of freedom and security under Articles 27, 28, 29 of the Constitution. 32.Counsel for the Respondents reiterates that the Petition lacks merit and fails to satisfy the necessary constitutional thresholds. They pray that the Court dismisses the Petition with costs. Analysis and Determination 33.I have considered the foregoing and find the main issue for determination to be whether the Petition is merited and whether the prayers sought can be granted. I will also determine the following sub-issues:-i.Whether the dispute between the Petitioner and the Interested Party is purely civil or if it discloses a criminal offense.ii.Whether the Petitioner’s constitutional rights were violated during her arrest and subsequent detention. i. Whether the dispute between the Petitioner and the Interested Party is purely civil or if it discloses a criminal offense. 34.The Petitioner argues that the Respondents exceeded their statutory mandates and weaponized the criminal justice system to handle what is fundamentally a civil, commercial transaction. The Respondents’ counter argument is that the arrest and prosecution of the petitioner for the offence of cheating contrary to Section 315 of the Penal Code are a lawful exercise of the respondents’ constitutional and statutory mandates, rather than a violation of her fundamental rights. The Respondents argue that the Petitioner, Teresiah Njeri, has failed to establish a competent constitutional claim that meets the threshold required by law in Anarita Karimi v Republic and Mumo Matemu. They assert that a civil suit can run concurrently with a criminal suit if it is established from the facts that a criminal offence was committed. 35.Article 157 of the Constitution establishes the office of the 1st Respondent and its functions as follows:157.Director of Public Prosecutions(1)There is established the office of Director of Public Prosecutions.(2).....(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;b.take over and continue any criminal proceedings commenced in any court (other than a court martial) that have been instituted or undertaken by another person or authority, with the permission of the person or authority; andc.subject to clause (7) and (8), discontinue at any stage before judgment is delivered any criminal proceedings instituted by the Director of Public Prosecutions or taken over by the Director of Public Prosecutions under paragraph (b).(7).....(8)......(9)......(10)The Director of Public Prosecutions shall not require the consent of any person or authority for the commencement of criminal proceedings and in the exercise of his or her powers or functions, shall not be under the direction or control of any person or authority.(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.... 36.The role of the 2nd and by extension the 3rd Respondents are well laid out in Article 245 of the Constitution as follows:245.Command of the National Police Service1.There is established the office of the Inspector-General of the National Police Service.2.The Inspector-General—a.is appointed by the President with the approval of Parliament; andb.shall exercise independent command over the National Police Service, and perform any other functions prescribed by national legislation.3.The Kenya Police Service and the Administration Police Service shall each be headed by a Deputy Inspector-General appointed by the President in accordance with the recommendation of the National Police Service Commission.4.The Cabinet secretary responsible for police services may lawfully give a direction to the Inspector-General with respect to any matter of policy for the National Police Service, but no person may give a direction to the Inspector-General with respect to—a.the investigation of any particular offence or offences;b.the enforcement of the law against any particular person or persons; orc.the employment, assignment, promotion, suspension or dismissal of any member of the National Police Service. 37.The basis of the Petition before the Court is that the Petitioner claims she received a commercial loan from a businessman, Joseph Njoroge Thuo, who is the complainant in the criminal court, to secure additional business stock, but he later reported the matter to the police, claiming she obtained the funds falsely. 38.According to the Respondent, as deposed by the Investigating Officer PC Justin Mutwiri, the complainant allegedly gave the Petitioner Kshs 2,500,000 as an investment to source yellow and soya beans from Uganda and East Africa for resale but the that the Petitioner allegedly failed to deliver the cereals. That their investigations led the police to conclude that the transaction was not a personal loan. The ODPP subsequently determined that there was sufficient evidence to charge the petitioner with cheating contrary to Section 315 of the Penal Code. 39.It is not in dispute that the Petitioner and the complainant engaged in a commercial transaction. As to whether the same was a personal loan or an investment; or whether it was tainted with criminality on the part of the Petitioner, are issues that can only be substantiated by the 2nd and 3rd Respondents who are vested with the authority to conduct criminal investigations and eventually determine through evidence before the trial court. 40.The Petitioner asserts that the dispute is purely commercial in nature and not criminal. While this Court appreciates that the Respondents should not be conduits for seeking enforcement of civil debts, it is an equally sound legal principle that a commercial transaction can simultaneously form the basis of a criminal offense if elements of fraud, misrepresentation or cheating are detected at the inception of the contract. This can only be established through proper investigations carried out by the 2nd and 3rd Respondents and eventually prosecuted by the 1st Respondent. 41.This is drawn from the provisions of Section 193A which stipulates:193A.Concurrent criminal and civil proceedingsNotwithstanding 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. 42.Having established this, I have further considered the provisions of Section 315 of the Penal Code which is the offence for which the Petitioner has been charged with in the criminal court: the section provides:315.CheatingAny person who by means of any fraudulent trick or device obtains from any other person anything capable of being stolen, or induces any other person to deliver to any person anything capable of being stolen or to pay or deliver to any person any money or goods or any greater sum of money or greater quantity of goods than he would have paid or delivered but for such trick or device, is guilty of a misdemeanour and is liable to imprisonment for three years. 43.The above provisions stipulate that the offence is established where a person, by means of any fraudulent trick or device, obtains money or goods from another. In line with this, I have considered the provisions of Section 26 of the ODPP Act which stipulates that once the investigations are carried out by the 2nd and 3rd Respondents or their officers, they are to submit their findings to the 1st Respondent. The said Section is couched in the following terms:(1)The Inspector-General or any other investigative agency shall disclose to the Director all material facts and information collected in the course of an investigation that may be reasonably expected to assist the case of prosecution or defence.(2)The Inspector-General or any other investigative agency shall—a)conduct thorough investigations;b)compile all evidence; andc)submit all relevant information in relation to any investigation undertaken.(3)The duty of disclosure under this section shall—a)include privileged information; andb)continue until the determination of the case. 44.From the facts of this case, it is clear that there was exchange of money in the sum of Kshs 2,500,000 between the Petitioner and the complainant which was specific to an alleged Cereals business venture involving cross-border trade as established from the investigations. It is the Petitioner’s alleged non-delivery and the fact that the complainant could not reach her that raised a reasonable suspicion of fraudulent intent and led to the complaint being lodged before the 2nd and 3rd Respondents by the complainant. This necessitated the police investigative power as outlined by the Constitution and statute above. The findings of these investigations then led to the 1st Respondent’s decision to prosecute the Petitioner on the charge of cheating. 45.It is not the business of this Court, sitting as a Constitutional Court, to test the ultimate guilt or innocence of the Petitioner; that is the preserve of the trial court. At the same time, the Inspector General of Police, through his offices, is mandated to investigate and establish criminality of a party’s actions under Article 245 of the Constitution and the National Police Service Act. 46.Equally, the ODPP possesses the constitutional mandate under Article 157 to institute criminal proceedings where a prima facie case exists. 47.I find that the dispute between the Petitioner and the complainant arose from the Petitioner’s complete failure to deliver the goods or account for the funds and that could simply be construed as a civil dispute. 48.However, where the obtaining of funds may have been propagated by deceit, that element of criminality must be determined by thorough investigations, a prosecution decision and ultimately a trial before the criminal court to determine whether the offence has been proven. This Court cannot therefore interfere in that process on account of the dispute stemming from a commercial transaction unless there are compelling reasons to do so. I am fortified on this point b the decision in the case of Justus Mwenda Kathenge v Director of Public Prosecutions & 2 others [2014] eKLR where the Court observed that:“8.It is now trite that Courts cannot interfere with the exercise of the above mandate unless it can be shown that under Article 157(11);(i)he has acted without due regard to public interest,(ii)he has acted against the interests of the administration of justice,(iii)he has not taken account of the need to prevent and avoid abuse of Court process.” 49.The Court of Appeal in the case of Diamond Hasham Lalji & another v Attorney General & 4 others [2018] eKLR also held as follows:“(41)Thus, the exercise of prosecutorial discretion enjoys some measure of judicial deference and as numerous authorities establish, the courts will interfere with the exercise of discretion sparingly and in the exceptional and clearest of cases...”1.I ma equally fortified by the Supreme Court decision in Hussein Khalid and 16 others v Attorney General & 2 others, SC Petition No 21 of 2017; [2019] eKLR that“105]It is not in dispute that every statutory definition of an offence comprises ingredients or elements of the offence proof of which against the accused leads to conviction for the offence. Inevitably, proof or otherwise of elements of an offence is a question of fact and that largely depends on the evidence first adduced by the prosecution and where the accused is placed on his defence, the accused evidence in rebuttal. This in our view is an issue best left to the trial court as it will not only have the benefit of the evidence adduced but will weigh it against the elements of the offence in issue. It is not automatic that once a person is charged with an offence (s) he must be convicted. Every trial is specific to the parties involved and a blanket condemnation of the statutory provisions is in our view overreaching. The presumption of innocence remains paramount.” [Further Emphasis added] 50.The above decision was also cited by the Supreme Court in the Saisi & 7 others v Director of Public Prosecutions & 2 others (Petition 39 & 40 of 2019 (Consolidated)) [2023] KESC 6 (KLR) (27 January 2023) (Judgment) where the apex Court stated:11.“The merits of the case were more appropriately analyzed in a trial or appellate setting, where oral testimony, cross-examination, and full evidentiary processes were available. In matters of discretion, the court may compel action, but it could not dictate how that discretion was exercised.12.Under article 157(6) of the Constitution, the DPP had power to institute and conduct criminal proceedings, and under article 157(10) exercised that power independently, free from external control. However, article 157(11) imposed a duty to act in the public interest, ensure the proper administration of justice, and prevent abuse of legal process.13.Where criminal proceedings appeared to be instituted to settle personal scores, to abuse court process, or in circumstances where the case was manifestly untenable, the court could intervene.14.Although the DPP was independent and not bound by any direction, control, or recommendations by any institution or body, failure to meet the standards of article 157(11) of the Constitution invited judicial scrutiny under article 165(3)(d)(ii). In evaluating alleged abuse of prosecutorial powers, the following guiding principles, read with article 157(11), were relevant:a.where prosecution would amount to an abuse of court process, or quashing it would secure the ends of justice;b.where a legal bar existed to the institution or continuation of proceedings;c.where, taken at face value, the allegations did not constitute the offence charged; ord.where there was no legal evidence, or the evidence manifestly failed to prove the charge.15.In matters involving discretion, a public body may be directed to act, but not as to the manner of its action, except in cases of gross abuse, manifest injustice, or palpable excess of authority equivalent to the denial of a vested right.16.Disputes over statutory interpretation or the elements of an offence were not matters of prosecutorial propriety but of legal and evidentiary assessment, which were within the trial court’s jurisdiction and not that of the judicial review court.17.The High Court’s interference with prosecutorial discretion was warranted only where it was shown that criminal proceedings were instituted for purposes other than enforcing the criminal law, or in abuse of the court process.18.Determining the applicable procurement law and the appellants’ role in the tender process required viva voce evidence and cross-examination, matters properly within the trial court’s jurisdiction. The High Court exceeded its jurisdiction in intervening at the judicial review stage.19.The right to a fair hearing under article 50(1) of the Constitution included the right to a fair trial in both judicial and administrative contexts. By avoiding trial, the appellants deprived themselves of the opportunity to test the prosecution’s case and assert their innocence within the protections afforded by article 50(1).20.The proper course was to proceed to trial, where they could raise any legal or evidentiary challenges to the charges.” 51.On whether the dispute is purely civil, I have examined the material before the court and I am not persuaded that the criminal proceedings were mounted against the petitioner in order to aid the complainant strengthen his claim for the monies advanced to the petitioner. 52.Further to the above, Section 193A of the Criminal, Procedure Code on the concurrence of both proceedings is clear and so this Court cannot firmly conclude that the matter is purely civil or purely criminal. There is also no evidence indicating that the Respondents acted maliciously or arbitrarily in concluding that a criminal investigation and a subsequent prosecution were warranted. ii. Whether the Petitioner’s constitutional rights were violated during her arrest and subsequent detention. 53.Turning to the issue of the alleged violations of the petitioner’s constitutional rights, I note that the National Police Service Act, 2011 operationalizes the National Police Service which is established under Article 243 of the Constitution. Section 24 of the Act provides the functions of the police as:a)provision of assistance to the public when in need;b)maintenance of law and order;c)preservation of peace;d)protection of life and property;e)investigation of crimes;f)collection of criminal intelligence;g)prevention and detection of crime;h)apprehension of offenders;i)enforcement of all laws and regulations with which it is charged; andj)performance of any other duties that may be prescribed by the Inspector-General under this Act or any other written law from time to time. 54.Section 28 provides for the office of the Director of Criminal Investigations while Section 35 of the Act stipulates the following functions: -a)collect and provide criminal intelligence;b)undertake investigations on serious crimes including homicide, narcotic crimes, human trafficking, money laundering, terrorism, economic crimes, piracy, organized crime, and cybercrime among others;c)maintain law and order;d)detect and prevent crime;e)apprehend offenders;f)maintain criminal records;g)conduct forensic analysis;h)execute the directions given to the Inspector-General by the Director of Public Prosecutions pursuant to Article 157 (4) of the Constitution;i)co-ordinate country Interpol Affairs;j)investigate any matter that may be referred to it by the Independent Police Oversight Authority; andk)perform any other function conferred on it by any other written law. 55.Courts are replete with decisions in which the powers and functions of the National Police Service are discussed. In Republic v Commissioner of Police & another Ex-Parte Michael Monari & another [2012] eKLR the Court held that:“It is also clear in my mind 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.” 56.In Pauline Adhiambo Raget v Director of Public Prosecutions & 5 others [2016] eKLR the National Police Service’s role was affirmed as follows:“46.… The Respondents are enjoined to investigate any allegations of criminal activity or conduct both by statute as well as by the Constitution. The investigations may take them to anyone including the Petitioner. They could investigate on their own prompting or upon being prompted by any member of the public as did the Interested Party in this case. In so doing, it is a legal mandate they would be undertaking.” 57.In carrying out its duties, the National Police Service shall not be under the direction or authority of any person. They must however consider public interest in discharging their duties and act in good faith. This was the holding by the Court of Appeal in Commissioner of Police & The Director of Criminal Investigation Department & another v Kenya Commercial Bank Limited & 4 others [2013] eKLR, that:“…while it is the prerogative of the police to investigate crime, we reiterate that that power must be exercised responsibly, in accordance with the laws of the land and in good faith.” 58.The independence of the office of the 1st Respondent is also well-captured under Article 157 (10) of the Constitution which establishes the office of the 1st Respondent as an independent body. This independence is further found in Section 6 of the ODPP Act thus:6.Pursuant to Article 157(10) of the Constitution, the Director shall—a)not require the consent of any person or authority for the commencement of criminal proceedings;b)not be under the direction or control of any person or authority in the exercise of his or her powers or functions under the Constitution, this Act or any other written law; andc)be subject only to the Constitution and the law. 59.Accordingly, the decision to institute criminal proceedings by the 1st Respondent is purely discretionary and is carried out with public interest in mind. In Thuita Mwangi & Anor –vs- The Ethics & Anti-Corruption Commission & 3 Others Petition No.153 & 369 of 2013, Majanja J. expressed himself as hereunder:“The decision to institute criminal proceedings by the DPP is discretionary. Such exercise of power is not subject to the direction or control of any authority as Article 157(10)…These provisions are also replicated under Section 6 of the Office of the Director of Public Prosecutions Act, No.2 of 2013…In the case of Githunguri –vs- Republic (Supra at p.100), the court observed … The Attorney General of Kenya … is given unfettered discretion to institute and undertake criminal proceedings against any person “in any case which he considers it desirable so to do …this discretion should be exercised in quasi-judicial way. That is, it should not be exercised arbitrarily, oppressively or contrary to public policy…” 60.Similarly, in Kenya commercial Bank Ltd and 2 others Vs Commissioner of police and Another, Nairobi Petition No 218 of 2011 (unreported), the court observed that: -“The office of the Director of public prosecutions and Inspector General of the National police service are independent offices and this court would not ordinarily interfere in the running of their offices and exercise of their discretion within limits provided for by the law. But these offices are subject to the constitution and the bill of rights contained therein and, in every case, the high court as the custodian of the bill of rights is entitled to intervene where the facts disclose a violation of the rights and fundamental freedom guaranteed under the constitution.” 61.Lastly, in Investments & Mortgages Bank Limited (I&M) Vs Commissioner of police and The director of criminal investigations Department & DPP & 2 others, Nairobi HCC Petition No 104 of 2012 (2013) eKLR, the Court also stated:-“I agree with the respondents that it is within their mandate to investigate crimes where there is reasonable basis of commission of an offence and that in performance of their duties, they are independent institutions. The office of the Director of public prosecutions established under Article 157 is an independent office which is empowered to conduct its duties free from any influence or control by any authority. Its actions must be within the law and in accordance with what the Constitution dictates. One such dictate is that in the exercise of their powers, it is to “have regard to the public interest, the interests of administration of justice and the need to prevent and avoid abuse of the legal process.” Article 244 enjoins the National police service to amongst other things “comply with constitutional standards of human rights and fundamental freedoms.” 62.Taking queue from the above authorities, I have considered the Petitioner’s assertions that the intended prosecution is oppressive, vexatious and was initiated by the Respondents in bad faith for ulterior motives rather than the bona fide enforcement of law and order. The Petitioner also alleges violation of several of her rights. 63.She states that she was summoned to Kasarani Police Station, arrested and had her two mobile phones confiscated. She also alleges that she was denied cash bail, detained beyond the statutory 24-hour limit and subjected to an arbitrary arrest over what she maintains is a purely civil transaction. Lastly, she contends that her sister’s vehicle was unlawfully confiscated by the officers of the 2nd and 3rd Respondent, yet it was not in any way related to the commercial issue between her and the complainant. 64.The Petitioner alleges that her right to privacy under Article 31 was violated when the police used threats, intimidation, coercion and undue pressure in demanding that she supplies them with the passwords and PIN numbers of her two mobile phone devices in order to gain their access. 65.I have considered the right to privacy under Article 31 of the Constitution as follows: -31.PrivacyEvery person has the right to privacy, which includes the right not to have—(a)their person, home or property searched;(b)their possessions seized;(c)information relating to their family or private affairs unnecessarily required or revealed; or(d)the privacy of their communications infringed. 66.Article 17 of the International Covenant on Civil and Political Rights (ICCPR) also protects the right to privacy as follows:1.No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation.2.Everyone has the right to the protection of the law against such interference or attacks. 67.The right to privacy is however not absolute and may be limited in accordance with Article 24. There are certain instances in which it may be curtailed for lawful reasons such as for the maintenance of law and order. The Constitutional Court of of South Africa, while dealing with the question of search and seizure in the case of The Investigating Directorate: Serious Economic offences and others v Hyundai Motor Distributors (Pty) Ltd and Others In Re: Hyundai Motor Distributors (Pty) Ltd and Others v Smit NO and Others (CCT1/00) [2000] ZACC 12, held thus:“(54)…There is no doubt that search and seizure provisions, in the context of a preparatory investigation, serve an important purpose in the fight against crime. That the state has a pressing interest which involves the security and freedom of the community as a whole is beyond question. It is an objective which is sufficiently important to justify the limitation of the right to privacy of an individual in certain circumstances. The right is not meant to shield criminal activity or to conceal evidence of crime from the criminal justice process. On the other hand, state officials are not entitled without good cause to invade the premises of persons for purposes of searching and seizing property; there would otherwise be little content left to the right to privacy. A balance must therefore be struck between the interests of the individual and that of the state, a task that lies at the heart of the inquiry into the limitation of rights.”[emphasis added] 68.From the above case, it is understood that where a person is suspected of committing a crime and the person is subjected to investigations as is the case herein, then that alleged criminal conduct is not private in nature and cannot attract absolute confidentiality and/or privilege. Criminal behaviour constitutes an offense against society as a whole, meaning it inherently lacks the private character required to claim legal confidentiality or privilege. 69.Differently put, the right to privacy is not an absolute shield as already stated in the above cited case and Article 31 of the Constitution is designed to protect personal autonomy and intimate spheres of life, not to conceal unlawful acts or harbour immunity from justice. 70.Further, since criminal conduct is against public policy as it inflicts public harm, the state possesses a compelling interest in its detection, investigation and prosecution. Consequently, when an individual chooses to engage in criminal activity, they effectively forfeit the expectation of privacy regarding those actions because, the need to protect the public and the enforcement of the law eventually prevails any claims to personal secrecy or data protection. 71.Having said that, while this Court does not in any way conclude that the Petitioner was involved in any criminal activities, since that is the preserve of the criminal court, I find that at the time when the officers of the 2nd and 3rd Respondents took the petitioner into custody, they were well within their investigative duties to demand access to her mobile phone in the furtherance of their investigative duties and that under those circumstances, her right to privacy was not violated. 72.The second right that is allegedly violated is the right to property under Article 40. The Petitioner’s Counsel submits that her right to property was violated when the police arbitrarily seized and detained a motor vehicle Mazda Demio, Reg No. KDN xxxJ driven by the Petitioner’s sister during her visit to the station. Counsel asserts that the vehicle had no connection to the cereal business under investigation, making its confiscation unnecessary and unreasonable. The issue of seizure of her mobile phones was also put before the Court. 73.Article 40 of the Constitution provides as follows:40.Protection of right to property(1)Subject to Article 65, every person has the right, either individually or in association with others, to acquire and own property—(a)of any description; and(b)in any part of Kenya.(2)Parliament shall not enact a law that permits the State or any person—(a)to arbitrarily deprive a person of property of any description or of any interest in, or right over, any property of any description; or(b)to limit, or in any way restrict the enjoyment of any right under this Article on the basis of any of the grounds specified or contemplated in Article 27(4).(3)The State shall not deprive a person of property of any description, or of any interest in, or right over, property of any description, unless the deprivation—(a)results from an acquisition of land or an interest in land or a conversion of an interest in land, or title to land, in accordance with Chapter Five; or(b)is for a public purpose or in the public interest and is carried out in accordance with this Constitution and any Act of Parliament that—(i)requires prompt payment in full, of just compensation to the person; and(ii)allows any person who has an interest in, or right over, that property a right of access to a court of law. 74.I will first address the allegation that the two phones were seized by the police officers. Just like the right to privacy is not absolute, the Petitioner’s right to her mobile phones was in my view, temporarily limited and with the inventory in place, I find that the two phones were lawfully taken away the moment she was placed in custody, under investigations. Additionally, the Respondents asserted that a proper inventory was taken and the purpose for such seizure was solely to investigate the issue at hand. 75.These averments were neither denied nor controverted by the Petitioner and therefore, that remains the position as evidenced by the inventory of items recovered as was also annexed to the petitioner’s supporting affidavit sworn on 25th May 2024 and the said inventory clearly signed by the petitioner and police officer who received her in custody. The inventory is dated 22nd May 2024 and lists the two mobile phones and their IMEI numbers. It can therefore not be said that the petitioner’s right to property was violated in any way. 76.Secondly, on the claim that her sister’s vehicle was confiscated, I find that this right to property cannot be sustained in this petition because the petitioner has not established ownership whether legal or beneficial interest in the said motor vehicle Mazda Demio and neither has she demonstrated that she was its special owner at the material time, noting that the vehicle is said to have been taken possession of from her sister and not from the petitioner. 77.The third and fourth alleged violations are intertwined. The Petitioner states that she was unlawfully detained and denied bail. The right to bail is guaranteed under Article 49 of the Constitution as follows:(1)An arrested person has the right—(h)to be released on bond or bail, on reasonable conditions, pending a charge or trial, unless there are compelling reasons not to be released. 78.It is trite that the right to bail is not absolute. The Constitution guarantees that an arrested person ought to be admitted to bail or bond unless there are compelling reasons not to. Section 123A of the Criminal Procedure Code gives the parameters for the grant of the right to bail as follows:1.Subject to Article 49(1)(h) of the and notwithstanding Section 123, in making a decision on bail and bond, the Court shall have regard to all the relevant circumstances and in particular—a.the nature or seriousness of the offence;b.the character, antecedents, associations and community ties of the accused person;c.the defendant's record in respect of the fulfilment of obligations under previous grants of bail; and;d.the strength of the evidence of his having committed the offence2.A person who is arrested or charged with any offence shall be granted bail unless the court is satisfied that the persona.has previously been granted bail and has failed to surrender to custody and that if released on bail (whether or not subject to conditions) it is likely that he would fail to surrender to custody;b.should be kept in custody for his own protection. 79.The Judiciary’s Bail and Bond Policy Guidelines, 2015 also set out the factors that must be considered when granting bail. 80.I have equally considered the case of S vs. Nyaruviro & Another (HB 262-17, HCB 122-17, XREF CRB 1454A-B-17) [2017] ZWBHC 262 (31 August 2017), where the Court held that: -“The refusal to grant bail and the detention of an accused in custody shall be in the interests of justice where one or more of the following grounds are established where there is a likelihood that the accused, if he or she were released on bail, will -i.endanger the safety of the public or any particular person or will commit an offence referred to in the First Schedule; orii.not stand his or her trial or appear to receive sentence; oriii.attempt to influence or intimidate witnesses or to conceal or destroy evidence; oriv.undermine or jeopardize the objectives or proper functioning of the criminal justice system, including the bail system… the ties of the accused to the place of trial; the existence and location of assets held by the accused; the accused’s means of travel and his or her possession of or access to travel documents; the nature and gravity of the offence or the nature and gravity of the likely penalty therefore; the strength of the case for the prosecution and the corresponding incentive of the accused to abscond”. 81.The Petitioner herein claimed that she was denied the right to be released on executing bail terms despite her legal counsel’s undertaking that she would be presented whenever required to. 82.The Respondents case is that since the 1st Respondent made a decision to charge the Petitioner, she was summoned to the police station and booked vide OB No.xx/xx/xx/2024 in preparation to be arraigned in court having failed to raise a cash bail. I note that the Petitioner did not controvert this assertion nor provide evidence of the fact that she was denied bail. I am guided by the principles in Sections 107-109 of the Evidence Act which stipulate that “he who alleges must prove”. 83.On the issue of being unlawfully detained for more that the 24 hours constitutional timeline, I note that the Petitioner was placed in custody on 22nd May 2024 which was a Wednesday and she was taken to court on 24th May 2024 which was a Friday. Article 49 of the Constitution provides as follows: -49.Rights of arrested persons(1)An arrested person has the right—(f)to be brought before a court as soon as reasonably possible, but not later than—(i)twenty-four hours after being arrested; or(ii)if the twenty-four hours ends outside ordinary court hours, or on a day that is not an ordinary court day, the end of the next court day; 84.From the pleadings, no explanations have been given by the 2nd and 3rd Respondents for detaining the Petitioner at the police station for more than 24 hours before presenting her to court to take plea. There is no evidence that the following day was a public holiday and therefore the police had no right to detain her in excess of the 24 hours stipulated in Article 49(1) (f) of the Constitution. Accordingly, I find that the Petitioner’s right under Article 49 (1) (f) was violated by the 2nd and 3rd respondents. 85.Lastly, on the right to dignity and presumption of innocence under Articles 28 and 50 (2) (a), the Petitioner averred that the complainant circulated a poster allegedly originating from the 3rd Respondent portraying her as “most wanted” which had the effect of publicly branding her as a criminal before any judicial determination, thereby violating her constitutional rights to human dignity and right to fair trial on presumption of innocence. 86.The Respondent denies knowledge of the said poster and asserts the Petitioner’s presumption of innocence and her fundamental rights and freedoms are guaranteed and jealously guarded by the Constitution and do not vanish by her prosecution before a competent court of law. 87.I note at paragraph 9 of the Petitioner’s Supporting Affidavit that she states that the said poster had not been publicly shared on the official Public Social Media Accounts maintained by the DCI. Further, since the Petitioner had been lawfully detained in a police station on reasonable suspicion that she had committed a crime, such lawful detention did not infringe upon her right to dignity. The legal system recognizes that temporary deprivation of liberty is a necessary and justified measure to maintain public order and investigate offenses. That said, while detention inherently restricts personal freedom, an individual’s intrinsic dignity remains legally protected throughout the process. So long as the detention is conducted under proper legal authority and the suspect is treated humanely, free from abuse, degradation, or unnecessary harshness, the mere fact of being held by law enforcement agencies does not violate their fundamental worth as a human being. 88.Besides, given the Petitioner’s own explicit admission that the "most wanted" poster in question was never published or circulated by the Directorate of Criminal Investigations (DCI) on its official social media channels, there is no factual basis to claim that her right to dignity was infringed by the state. The legal concept of a state-sanctioned violation of dignity relies on an official act or public exposure directly attributable to a government agency. 89.Therefore, as the publication did not originate from or appear on the DCI's verified public platforms, any subsequent dissemination or social media traction cannot be legally imputed to the law enforcement agents. A right cannot be infringed by an official publication that, by the Petitioner’s own acknowledgment, the state authority never actually made. The DCI did not even admit to making the said poster. 90.Flowing from this, I also find that, if no one else saw the said poster for lack of circulation on the Respondents’ social media platform or to any of their other platforms such as notice Boards and absent evidence that the respondents ever generated or circulated the said poster, then the petitioner’s presumption of innocence could not be eroded. 91.Accordingly, the Petitioner’s assertions and claims on this alleged violation were unfounded and that she has not proven her rights were violated under Articles 28 and 50 (2) (a) of the Constitution. 92.In the final analysis, I find that the Petitioner has not made out a case to prove infringement of her other pleaded rights. She has however, proved that her rights under Article 49 (1) (f) of the Constitution were violated. 93.On the remedy for this violation of the petitioner’s right to be presented to court within 24 hours, I find that the petitioner was presented to court after 24 hours and within 48th hours and that she is entitled to damages. as was stated in Nakuru High Court Petition No. 7 of 2010 Lechornai Lorkuran –V- A.G, cited in Criminal Petition No. 5 of 2015 Jacob Githinji Macharia Versus Inspector General of Police and the Hon Attorney General, the Court while considering a case on violation of the petitioner’s rights stated:“In my view damages for contravention of fundamental rights of freedoms is at the discretion of the court, and where the petitioner claims particular sum or figure, that sum or figure ought to be related to some basis for instance loss of business, income or other quantifiable basis. In the absence of such basis, it falls into the court’s discretion. There was no information as to the petitioner’s occupation or trade and it is thus difficult to approximate what loss in monetary terms he suffered during the period of unlawful incarceration.” 94.In Criminal Petition No.4 of 2015 Anne Kendi Muthee Versus Inspector General of Police, The Hon Attorney General and Criminal Petition No. 5 of 2015 Jacob Githinji Macharia Versus Inspector General of Police the Hon Attorney General, the petitioner was detained for 10 days in police custody without being taken to court. The Court awarded the petitioner Kshs 300,000 general damages. 95.In Justus Ochieng v Attorney General Petition E051 of 2025, in a judgment delivered on 15th May 2026, the Supreme court upheld an award of KAHS 100,000 and rejected the appeal seeking to enhance the award to Kshs 15,00,000 sought by the petitioner, noting that the petitioner was arrested and released the following day. The Supreme Court distinguished the cases cited including the Gitobu Imanyara (supra) relied on by the petitioner herein, noting that the circumstances were different from those of the petitioner. 96.Taking cue from the above decisions and considering that the petitioner was detained for 46 hours instead of 24 hours, I exercise discretion and award her Kshs 100,000 general damages for unlawful detention beyond 24 hours prior to being taken to court, contrary to under Article 49 (1) (f) of the Constitution. 97.I now make the following orders:i.A Declaration be and is hereby issued that the detention of the petitioner in the police cells by the 2nd and 3rd respondents for more than 24 hourswithout presenting her to court was a violation and infringement of her rights guaranteed under Article 49 (1) (f), of the Constitution.ii.I award the petitioner general damages in the sum of Kshs 100,000 for unlawful detention, together with interest at court rates from date of this judgment until payment in full to be paid by the 2nd and 3rd respondents.iii.The petitioner will have half (1/2) costs of these proceedings and interest on costs at court rates, payable by the 2nd and 3rd respondents.iv.All the other reliefs as sought in the petition dated 25th May 2024 are dismissed. 98.Save for assessment of costs and drawing of decree and certificate of order against the government, this file is closed. 99.Orders accordingly. DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI THIS 3RD DAY OF JULY, 2026R.E. ABURILIJUDGE