Nyamasege & 3 others v Office of the Director of Public Prosecutions & another (Petition E012 of 2026) [2026] KEHC 13267 (KLR) (28 July 2026) (Ruling)

** REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT NYAMIRA** **(CHERERE-J)** **HCCHRPET E012 OF 2026** **BETWEEN** **LEONARD KEVIN NYAMASEGE**....................................**1ST PETITIONER** **DAVID OMBEGO**.................................................................**2ND PETITIONER** **JOYCE ONYIEGO**...............................................................**3RD PETITIONER** **ERICK AYUKA**....................................................................**4TH PETITIONER** **AND** **OFFICE OF THE DIRECTOR OF PUBLIC PROSECUTIONS**…………………………………………**1ST RESPONDENT** **THE ETHICS AND ANTI-CORRUPTION COMMISSION**....................................................................**2ND RESPONDENT** **RULING** 1. The Petition dated 18th June 2026 is brought by Leonard Kevin Nyamasege, David Ombego, Joyce Onyiego and Erick Ayuka against the Office of the Director of Public Prosecutions and the Ethics and Anti-Corruption Commission. The Petition challenges the institution and continuation of criminal proceedings in Keroka MCCGCR No. E001 of 2026 on the ground that the investigations and intended prosecution violate or threaten to violate the Petitioners' constitutional rights and fundamental freedoms. Simultaneously with the Petition, the Petitioners filed a Notice of Motion dated 18th June 2026 seeking, among other reliefs, conservatory orders staying or restraining the continuation of the criminal proceedings pending the hearing and determination of both the application and the Petition. 2. The 1st Respondent raised a Notice of Preliminary Objection dated 8th July 2026 pursuant to Order 51 Rule 14(1)(a) of the Civil Procedure Rules, 2010. The objection challenges both the Petition and the Notice of Motion on the grounds that the Petition is res judicata and offends the doctrine of sub judice under Section 6 of the Civil Procedure Act in view of Nyamira HCCRMISCAPPL E020 of 2026, Nyamira HCCHRPET Nos. E008 and E009 of 2026 and Milimani Anti-Corruption and Economic Crimes Petition No. E026 of 2026. It further contends that the Petition constitutes forum shopping, is tainted by material non-disclosure, seeks to circumvent the ruling delivered in Nyamira HCCRMISCAPPL E020 of 2026, amounts to an abuse of the constitutional jurisdiction of the Court and should therefore be struck out together with the Notice of Motion, while the conservatory orders issued herein should be discharged. 3. The procedural history giving rise to the Preliminary Objection is not disputed. On 24th March 2026, Duke Simeon Onyari, David Ombego, Leonard Nyamasege, Joyce Onyiego, Erick Ayuka and Simeon Ogecha instituted Nyamira HCCRMISCAPPL E020 of 2026 against the Office of the Director of Public Prosecutions and the Ethics and Anti-Corruption Commission seeking anticipatory bail and conservatory orders restraining their arrest and prosecution in Keroka MCCGCR No. E001 of 2026 pending the hearing and determination of the application. 4. Before that application was determined, the same parties instituted Bomet HCCHRPET Nos. E002 and E003 of 2026 on 7th April 2026 challenging the same criminal proceedings and seeking substantially similar conservatory relief. Interim conservatory orders were granted on the same day. 5. On 8th April 2026, this Court delivered its ruling in Nyamira HCCRMISCAPPL E020 of 2026, declining to grant the anticipatory bail and conservatory orders sought. The Court directed that the interim anticipatory bail orders issued on 24th March 2026 would lapse on 12th April 2026, ordered the Applicants to appear before the trial court in Keroka MCCGCR No. E001 of 2026 on 13th April 2026 and marked the proceedings as concluded. 6. The two Bomet Petitions were subsequently transferred to this Court and registered as Nyamira HCCHRPET Nos. E008 and E009 of 2026. In a ruling delivered on 21st May 2026, this Court observed that it had already pronounced itself on issues arising from the same criminal proceedings in Nyamira HCCRMISCAPPL E020 of 2026. The Court consequently declined to revisit those issues, transferred both Petitions to the Anti-Corruption and Economic Crimes Division of the High Court at Milimani for further directions and declined to extend the conservatory orders that had earlier been issued. 7. Notwithstanding the foregoing proceedings, four of the litigants, namely Leonard Kevin Nyamasege, David Ombego, Joyce Onyiego and Erick Ayuka, instituted the present Petition on 18th June 2026 before the High Court at Kisumu challenging the same prosecution in Keroka MCCGCR No. E001 of 2026 and once again seeking conservatory orders. On 19th June 2026, Hon. Justice Joe Omido certified the matter urgent, granted interim conservatory orders and directed that the file be transferred to the High Court at Nyamira. Hon. Justice Alfred Mabeya subsequently confirmed the transfer and extended the interim conservatory orders pending appearance before this Court. 8. It is against that procedural background that the Court must determine whether the present proceedings constitute a proper invocation of its constitutional jurisdiction. The chronology reveals that before Nyamira HCCRMISCAPPL E020 of 2026 had been determined, the Petitioners commenced parallel constitutional proceedings before the High Court at Bomet concerning the same criminal prosecution. Thereafter, following the determination of the Miscellaneous Application and while the transferred constitutional petitions remained pending before the Anti-Corruption and Economic Crimes Division at Milimani, four of the same litigants instituted the present Petition before the High Court at Kisumu seeking substantially the same conservatory relief. 9. The repeated institution of proceedings before different stations of the High Court concerning the same criminal prosecution demonstrates a deliberate attempt to relitigate substantially the same dispute before courts of concurrent jurisdiction. The High Court established under Article 165 of the Constitution is one Court. Its various stations and specialised divisions exist solely for administrative convenience and do not constitute separate judicial forums from which litigants may choose whichever appears likely to yield a favourable outcome. A party dissatisfied with a decision rendered by a court of competent jurisdiction must pursue the appellate process provided by law rather than institute fresh proceedings before another court of coordinate jurisdiction. 10. In **Muchanga Investments Ltd v Safaris Unlimited (Africa) Ltd & 2 Others [2009] KECA 453 (KLR),** the Court of Appeal affirmed that abuse of process arises where judicial procedures are employed for purposes inconsistent with the proper administration of justice. Likewise, in **Tana and Athi Rivers Development Authority v Jeremiah Kimigho Mwakio & 3 Others [2015] KECA 674 (KLR),** the Court emphasised that judicial process should not be employed in a manner that obstructs or delays the administration of justice. 11. Those principles apply squarely to the present case. Rather than pursuing the remedies available following the determination of Nyamira HCCRMISCAPPL E020 of 2026 or awaiting the determination of the transferred constitutional petitions, the Petitioners commenced yet another constitutional petition before a different station of the High Court challenging the same prosecution and seeking substantially the same interlocutory relief. Such conduct not only exposes courts of concurrent jurisdiction to the risk of inconsistent decisions but also undermines the principles of finality, judicial comity and the orderly administration of justice. 12. The Court is alive to the rights guaranteed under Articles 22 and 48 of the Constitution, including the right to institute proceedings for the enforcement of constitutional rights and the right of access to justice. Those constitutional guarantees, however, cannot be invoked to justify the repeated institution of substantially similar proceedings before courts of concurrent jurisdiction after one court has already pronounced itself or while related proceedings remain pending elsewhere. Where a litigant is dissatisfied with a judicial determination, the proper remedy lies in the appellate process established by law. 13. The Court's authority to prevent such misuse of its process is anchored in its inherent jurisdiction to regulate its proceedings, preserve the integrity of the judicial process and ensure that its constitutional jurisdiction is not invoked oppressively or for collateral purposes. That jurisdiction is preserved under Rule 3(8) of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013, and has been recognised by the Supreme Court in **Republic v Karisa Chengo & 2 Others [2017] eKLR** and **Benjoh Amalgamated Limited & Another v Kenya Commercial Bank Limited [2014] eKLR**. 14. Having considered the undisputed procedural history, the Court is satisfied that the present Petition forms part of a sustained pattern in which substantially the same litigants have repeatedly instituted proceedings before different stations of the High Court challenging the same criminal prosecution and seeking substantially the same conservatory relief. The Petition is therefore not a proper invocation of this Court's constitutional jurisdiction but constitutes an abuse of the process of the Court. 15. Accordingly, the Court upholds the Preliminary Objection and makes the following orders— 16. **The Petition dated 18th June 2026 and the Notice of Motion of even date are hereby struck out in their entirety for being an abuse of the process of the Court.** 17. **The conservatory orders issued in these proceedings are hereby discharged forthwith.** 18. **1st Respondent’s costs shall be borne by the Petitioners** 19. **The file is hereby closed** **DELIVERED AT NYAMIRA THIS 28th DAY OF July 2026**  **WAMAE.T. W. CHERERE** **JUDGE** **Appearances** **Court Assistant - Anita** **For Petitioners - Ms. Atieno for Otieno & Achieng Advocates** **For 1st Respondent - Mr. Omeri** **For 2nd Respondent - N/A**