https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12987

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT NAIROBI** **CONSTITUTIONAL AND HUMAN RIGHTS DIVISION** **CONSTITUTIONAL PETITION NO. E657 OF 2024** **IN THE MATTER OF ARTICLES 19(2), (3), 20, 21(1), 22, 23, 25, 26, 27, 28, 29, 31, 35, 40, 48, 49(1)(a), (f), (g), (h), 50(1), 73 & 75 OF THE CONSTITUTION OF KENYA** **AND** **IN THE MATTER OF THE CONSTITUTION OF KENYA (PROTECTION OF RIGHTS AND FUNDAMENTAL FREEDOMS) PRACTICE AND PROCEDURE RULES 2013** **AND** **IN THE MATTER OF THE POLICE ACT** **AND** **IN THE MATTER OF PREVENTION OF TORTURE ACT 2017** **AND** **IN THE MATTER OF PUBLIC OFFICERS ETHICS ACT CAP 183** **AND** **IN THE MATTER OF THE DATA PROTECTION ACT** **AND** **IN THE MATTER OF THE VIOLATION OF THE PETITIONER’S CONSTITUTIONAL RIGHTS** **AND** **IN THE MATTER OF THE APPLICATION FOR ORDERS OF MANDAMUS** **AND** **IN THE MATTER OF THE PENAL CODE CAP 63 LAWS OF KENYA SECTION 313** **AND** **IN THE MATTER OF THE CHIEF MAGISTRTE’S COURT AT MILIMANI CRIMINAL CASE NO MCCR E1114 OF 2024** **BETWEEN** **BRIAN REEVES OBARE……..………………….…………...PETITIONER** **VERSUS** **NANCY NANJIRA ODHUNGO aka** **NANCY OSBORNE NANJIRA,** **LYDIAH INYANGALA KEYA,** **LYDIAH MAUREN INYANGALA………………...…1ST RESPONDENT** **BONVENTURE ARADI aka** **BONVENTURE ARADI SABWA………………….…2ND RESPONDENT** **GOLDENKEY TRAVEL CONSULTANT** **COMPANY……………………………………………....3RD RESPONDENT** **CHIEF INSPECTOR EUNICE NJUE…………...…….4TH RESPONDENT** **CORPORAL ROBERT NYANGAU NO. 71306..……5TH RESPONDENT** **CORPORAL JAMES NZYOKA…………………………6TH RESPONDENT** **THE DIRECTOR OF CRIMINAL** **INVESTIGATIONS…………………………………..…7TH RESPONDENT** **OFFICE OF THE DIRECTOR OF** **PUBLIC PROSECUTION……………………………...8TH RESPONDENT** **THE ATTORNEY GENERAL………..…………..…….9TH RESPONDENT** **AND** **THE REGISTRAR OF PERSONS……………..1ST INTERESTED PARTY** **OUR LADY QUEEN OF PEACE** **PARISH SOUTH B……………………………..2ND INTERESTED PARTY** **JUDGMENT** **Introduction** 1. The petition dated 26th November 2024 is supported by the petitioner’s affidavit in support of even date, the Further Affidavit dated 25th March 2025 and a Supplementary Affidavit dated 28th May 2025. 2. The petition challenges the arrest and detention of the petitioner by the 1st respondent on grounds the arrest was unlawful and evidence subsequently obtained and relied against him was procured in violation of his constitutional rights. 1. The petitioner thus seeks the following reliefs: - 2. **A declaration that the rights of the petitioner were violated and/or threatened to be violated by the respondent under Article 19(2), (3), 20, 21(1), 22, 23, 25, 26, 27, 28, 29, 31, 35, 40, 48, 49(1)(a), (f), (g), (h), 50(1), 73 and 75 of the Constitution of Kenya.** 3. **A declaration that the petitioner’s constitutional rights to a fair trial were violated by the 5th, 6th and 7th respondents.** 4. **A declaration that the 5th, 6th, 7th and 8th respondents failed to follow the due process of the law in arresting, investigating and prosecuting the petitioner.** 5. **A declaration that the prosecution of the petitioner in MCCR No. E1114 OF 2024 was brought for extraneous purposes to extort fraudulently from the petitioner and amounts to abuse of police power and due process.** 6. **A declaration that the court is under a duty to exercise its inherent power and jurisdiction to protect against an abuse of its process.** 7. **An order of Certiorari to move this court to quash the entire proceedings in the Chief Magistrate’s Court at Milimani Criminal Case No. E1114 of 2024.** 8. **An order of prohibition directed to the respondents prohibiting further proceedings in the Chief Magistrate’s Court at Milimani Criminal Case No. E1114 of 2024 and further prohibiting the respondents from instituting any further charges against the petitioner in respect to the subject.** 9. **That in view of the conduct and actions of the 5th, 6th, 7th, 8th an d9th respondents, the court be pleased to issue an order of compensation in the sum of Kshs. 1 million as general, punitive and extemporary damages payable to the petitioner for defamation, illegal seizure of his tools of trade, loss of social capital, illegal detention and malicious prosecution payable to the petitioner by the government of the Republic of Kenya for the odious acts of its officers.** 10. **That the court be pleased to issue an order that the 5th, 6th and 7th respondents be investigated and be prosecuted for the offences that they will be found culpable as a lesson to all police officers who may be of similar inclination.** 11. **Special damages of Kshs. 13 million outstanding balance owed to the petitioner by the 1st respondent, this figure may go up once the tools of trade are released to the petitioner.** 12. **General damages.** 13. **Costs of the petition.** 14. **Any other relief that th****is Honourable Court considers appropriate and just to grant.** 15. In opposition to the petition, the1st, 2nd and 3rd respondents filed Replying Affidavits dated 5th March 2025, the 4th, 6th and 7th respondents filed a Replying Affidavit dated 14th May 2025, the 8th respondent and 1st Interested Party filed Grounds of Opposition dated 6th February 2025 and the 2nd Interested Party filed Grounds of Opposition dated 10th January 2025. **The Petitioner’s Case** 1. The petitioner is a surveyor by profession but currently operating as a travel consultant t/a **Elreezahly Consultant Limited** providing general consultancy services on visa application travel advisory and air ticketing. 2. He avers that he was introduced to the 1st respondent in the year 2020 by a travel broker by the name Bernard Ogada. The 1st respondent then approached him and informed him that **she had sixty clients** who needed travel visas and she wanted to use one successful application to enable her obtain money disappear. However, the petitioner he rebuked her informing her that it would be anti-business and a criminal offence to do such a thing and she thus vanished. 1. The 1st respondent reappeared at his offices in January 2022 based at Embassy House and informed him that she was ready to do business with him in processing travel visa. 2. The petitioner avers that he asked the 1st respondent to pay Kshs. 125,000/- for every client she brought for visa processing. The 1st respondent then negotiated a non-refundable amount of Kshs. 50,000/- instead of paying Kshs. 125,000/-with refundable amount of Kshs. 70,000/- in case the visa application did not go through. The petitioner states that he thus had an express contract with the 1st respondent on behalf of **Golden Key Travel Consultant Limited** where he received jobs from the 1st respondent at a fee. 3. In the year 2023, some applications started receiving bans from the Canadian Embassy because some of the applicants were not able to respond to the interview at the embassy in line with the information provided at the time of the application. He further processed visas on behalf of the 1st respondent and forwarded them to her in good faith expecting to be paid his commission but he did not receive the payments as the 1st respondent was good at giving excuses that her clients had not paid up. 1. Further in 2023, he received a complaint from one of the 1st respondent’s clients by the name Brian Mugalla who alleged that he had paid the 1st respondent for the visa and air ticket but was unable to secure his travel documents from the 1st respondent. The said Brian Mugalla got his number from another agent called Janet Mwangi. The petitioner avers that upon verifying the claim, he discovered that Brian Mugalla had sent money to the 1st respondent of about Kshs. 700,000/- for the visa and air-ticket and the 1st respondent had not collected the travel documents from the petitioner upon payment of Kshs. 250,000/-, she did not pay the petitioner in time and therefore the documents expired. The petitioner therefore reached out to the 1st respondent to return the air ticket money to Brian Mugalla and pay him his commission which she did not do hence did not release the said documents to the 1st respondent. 2. It is at that point that he realized that the 1st respondent received money from clients for processing visas but was not paying the petitioner his commission. That behaviour made her clients suffer because they could not get their travel documents despite having paid the 1st respondent for the visas as she failed to pay him to release the travel documents which he held as security for his fees. The travel documents consisted of application summary for the applicant which would let the applicant know what had been applied for so as to be able to respond to the immigration question at either Jomo Kenyatta International Airport, or the country of destination, conference letter/invitation letter, hotel booking confirmation and host details. 1. The petitioner reveals that he had processed many visas and delivered them to the 1st respondent and instead of the 1st respondent paying the petitioner for the work he had done at the agreed commission, she had instead squandered client’s money and never collected the travel documents which stuck with him making the visa applicant loose money by failing to travel. 2. The petitioner averred that the criminal proceedings instituted at the Chief Magistrate’s Court at Milimani Criminal Case No. MCCRE 1114 of 2024 was born out of the said controversy. He stated that the 1st respondent collected lots of money from visa applicants and authorised him to process visas but ended up not paying for processing fees, making him not to release the travel documents. 3. The petitioner contends that the 1st respondent misled the police to have him prosecuted on her behalf for an offence the 1st respondent is directly responsible. The petitioner contends that the 1st respondent cannot prove a case of obtaining money by false pretences against him as he never directly received money from the applicants; there was a working arrangement between the 1st respondent and himself which the 1st respondent failed to honour and misled the police to seize his tools of trade which include computers and mobile phones to try and extract the information of the visa applicants by the petitioner to use it as evidence illegally. 1. The petitioner averred that upon realizing the 1st respondent’s craftiness, he demanded an audit of all the visa applications referred to him by the 1st respondent and demanded that the 1st respondent do pay him his outstanding balance of approximately Kshs. 13 million subjects to verification from the gadgets illegally held by the 5th, 6th and 7th respondents. 2. The Petitioner alleges that as a result, he began receiving threats from the 1st respondent. On 5th September, he was arrested by officers from Langata Police criminal investigation officers on the allegations that he had obtained money from the 1st respondent’s alleged consultancy company. He explained the whole 3. story of his relationship with the 1st respondent and he was released on 6th September without charges being preferred. The complainant at Langata was not disclosed as the 1st respondent had covertly lodged a complaint through a proxy. 4. On 17th October, he was arrested by surprise by a team of policemen with guns blazing in the company of the 1st and 2nd respondents who collected all his computers, his wife’s computers, mobile phones, power banks and two vehicles a land rover and Honda saloon travel car and cash in the amount of USD 20,000/-. An inventory of the items was made but not availed to him save for what his wife was able to take a photo on her phone. The said items are illegally detained at the DCI headquarters Nairobi. 1. The petitioner avers that instead of producing him in court on 18th of October, the 5th, 6th and 7th respondents paraded a photo of him on their X page warning the public to keep away from him thus condemning him unheard and exposing him to public ridicule, embarrassment and effectively destroying his image. He was produced at Kibera Chief Magistrate’s Court by the 5th, 6th and 7th respondents with a miscellaneous application alleging that he had obtained Kshs. 89,185,000/- from the 1st respondent and the officers requested for some days to enable them complete investigations. The court granted the request and ordered his release at a cash bail of Kshs. 5 million which was reviewed by the High Court to Kshs. 200,000/-. The petitioner argues that upon the 5th, 6th and 7th respondents becoming aware of the order to release him on Kshs. 200,000/- bail, they diverted the court from Kibera to Milimani Chief Magistrate’s Court again subjecting him to another bail application and the bail was set at Kshs. 400,000/-. 1. The petitioner contends that he was illegally detained at the police station beyond 24 hours as he was arrested on 17th October 2024 at 2.00 am and produced in court on 22nd October at Kibera law courts contrary to Article 49(f) and (g). He was further subjected to torture and mental agony when the arresting officers ditched Kibera law courts for Milimani law courts with a view to subjecting him to fresh bond terms as a ploy to keep him in custody for a long time contrary to Article 25 of the Constitution. The petitioner states that he was wantonly carried away by the 4th, 5th and 6th respondents whereby his right to privacy in his home was violated in front of his wife and young children at 2 am; further, his right to privacy and security of person was violated by the 5th, 6th and 7th respondents when they paraded his photo on their page on X contrary to Article 29 and 31 of the Constitution thereby publicly embarrassing him and humiliating him on their X page and facebook pages, that the 5th, 6th and 7th respondents subjected him to economic sabotage by making sure all his clients and potential clients were notified of his ruthless evil and criminal behaviour therefore making sure that his social security was destroyed contrary to Article 42(e) of the Constitution; was subjected to inhuman, cruel and degrading treatment by the 5th, 6th and 7th respondents through physical assault in the police station by compelling to reveal password to his mobile phones and computers which illegally violated his rights to privacy under Article 31 of the Constitution. 1. The petitioner argues that the 1st respondent is a serial con fraudster and identity thief who has no locus standi to accuse him of the offences she has committed. Further, the 1st respondent does not have any connection with Goldenkey Travel Consultancy Limited as she is not a director or a shareholder or employee of the company. According to the petitioner, the 1st respondent’s real name is Lydiah Inyangala Keya, that Nancy Nanjira Odhungo is a different person born in 1991 in Bungoma County, whereas the 1st respondent was born in 1985 in Butere District. The petitioner further contends that the 2nd respondent is also a fraudster and a conman with a past record of fraud and obtaining money by lase pretences. **The 2nd & 3rd Respondents’ Case** 1. The 2nd and 3rd respondents state that the petitioner is known to the 2nd respondent. They aver that the petitioner introduced himself as an employee of the Canadian Embassy in Kenya who was capable of assisting the 3rd respondent in securing visas for its clients. 2. The respondents aver that in the year 2022, the Galden Ket Travel Consultants was registered as a sole proprietorship whereby the 2nd respondent was an employee at the time. The 2nd respondent states that his wife, Lydiah Inyangala Keya and her cousin Nancy Nanjira Odhongo were also employees of the said company at the time. The company Galden Key Travel Consultants Limited was incorporated and upon most clients referring to them as Golden Key Travel Consultant Limited, they changed the name to Golden Key Travel Consultant. Limited. The 2nd respondent avers that as a director of Golden Key Travel Consultant Limited, the company has never transacted at any point with a company known as Elreezahly Consultancy Limited. 3. In reference to MCCR E1114 of 2024, the current complainant, Nancy Nanjira Odhongo is an employee or consultant of the company and has been duly authorized to take action against the petitioner as the funds received by the petitioner were sent directly by the employee/consultant personal accounts which is regular as per the terms of her employment and the company policy to enable fast tracking of client services. Further, the 2nd respondent avers that consultant of the 3rd respondent have duly come forward with similar complaints against the petitioner namely Grace Kwamboka, Benard Kamuren and the Managing Director of Bonventure Aradi. 1. The respondents aver that the petitioner does not offer any evidence of utilization of the funds he received and neither did he produce any evidence as to the hindrance he allegedly faced in undertaking the work for which he had received huge sums of money towards. 2. Further, the 2nd and 3rd Respondent depone that all foreign embassies use online platforms for their visa application processes and thus if the petitioner attempted to carry out the work, the information would readily be available on the online platforms and thus retrievable at any time. Additionally, upon not seeing any progress in the visa applications most of their clients in the company refused to make any further payments which the petitioner had insisted and pressed some of their consultants to make so that he could show the progress he had made. Furthermore, three of their clients turned to the Small Claims Court for refunds and sued the consultants who held their accounts as referenced by the petitioner. 1. The respondents aver that the 2nd respondent is not a fraudster and there are no running cases against him for obtaining as alleged. They further aver that the subject of the investigations is Kshs. 7,948,650/- but was set to rise to an amount approximately Kshs. 80 million subjects to the DCI Investigators receiving the remainder bank reports and statements from the institution. 2. The petitioner filed a Further Affidavit dated 25th March 2025. He deponed that he has never dealt with the 2nd respondent but always dealt with the 1st respondent. He further states that the 1st respondent Nancy Nanjira Odhungo’s true name is Lydiah Inyangala Keya and she uses the name Nancy to defraud unsuspecting individuals of their hard-earned money. the 1st respondent’s criminal undertakings comprise of fraud, forgery, obtaining money by false pretence, impersonation among others. The petitioner further states that in previous documents, the 1st respondent has represented herself as a director of the 3rd respondent despite her name not appearing in the CR12 records. Further, the 1st respondent’s further statement dated 21st October 2024 provides that she met him in march 2021 while working as an operations Manager of the 3rd respondent however the employment contract produced by the 2nd respondent contradicts that assertion indicating that she only began working for the 3rd respondent in March 2022. 1. The petitioner avers that he is unable to produce any documents to substantiate the work he had undertaken as his mobile phones and laptops were confiscated by the 7th respondent. Despite a court order directing their release, the 7th respondent has refused to comply, thereby hindering his ability to provide the necessary evidence. He maintains that the 2nd respondent is a seasoned fraudster and financial swindler as he was previously convicted in Mombasa Criminal Case No. 3900 of 2008 and is presently facing ongoing charges related to forgery before the Makadara Law Courts. 2. The petitioner reiterates that he was arrested on 17th October 2024 at his home in Rongai by officers from the 7th respondent however instead of being presented in court on 18th October 2024, a Friday, the authorities deliberately prolonged his detention over the weekend subjecting him to unnecessary hardship. On 22nd October 2024, he was arraigned before Kibera Law Courts where the respondents filed a miscellaneous application seeking an extension of time to conduct investigations while he remained in custody. The trial court dismissed the said application and granted his release on a cash bail of Kshs. 5 million which was reviewed to Kshs. 200,000/- by the High Court further ordering his immediate release and directed that he appear before the trial court on 31s October 2024. Despite his full compliance with the cash bail terms as ordered by the High Court, the Officer Commanding Station at Capitol Hill Police Station acting in concert with the 4th, 5th, 6th and 7th respondents wilfully disobeyed the court order and unlawfully declined to release him from custody. They then orchestrated the irregular and unauthorized transfer of his case from Kibera Law Courts to Milimani Law Courts contrary to the court’s directive that he appears on 31st October 2024 at Kibera Law Courts. He further avers that when he was produced at Kibera Law Courts, a draft charge sheet was annexed to the application seeking his continued detention alleging that he had obtained Kshs. 89,185,000/- but when the case was transferred to Milimani Law Courts, the charge amount drastically reduced to Kshs. 7,948,654/-. The petitioner argues that the significant and unexplained reduction raises serious questions about the credibility of the complainant and the instigators behind the allegations further proving that their claims are nothing more than a blatant fabrication. 1. The petitioner argues that the 4th, 5th, 6th and 7th respondents are acting in concert with the 1st, 2nd and 3rd respondents to frustrate him and the same is motivated by monetary gain. Further the 4th, 5th, 6th and 7th respondents and other officers have mistreated him, defied court orders and detained him unlawfully on the instructions of the 1st and 2nd respondents. He avers that the financial statements produced by the prosecution in MCCR No. E1114 of 2024 shows suspicious money transactions undertaken by the 1st and 2nd respondents in favour of some police officers who have been involved in the case namely on 2nd September 2024, the 1st respondent made a withdrawal of Kshs. 24,000/- at an Mpesa agent at Langata Police Station which coincidentally was the first time he was arrested; on 3rd, 9th, 10th, 19th and 24th September 2024 and 11th October 2024, the 1strespondent sent amounts of Kshs. 5,000/-, Kshs. 5,000/-, Kshs. 5,000/-, Kshs. 1,030/-, Kshs. 4,000/- and Kshs. 3,500/- respectively to an officer named Kennedy Sifuna Atakwa who is attached to the 7th respondent; on 3rd and 5th September 2024, the 1st respondent sent Kshs. 15,500/- and Kshs. 20,000/- to an officer named Violet Khalayi who is attached to the 7th respondent and who took his finger prints during his initial arrest; on 17th October 2024, the 1st respondent made a withdrawal of Kshs. 50,000/- at an mpesa agent at Nairobi Area provincial headquarters which was meant to facilitate his second arrest; on 18th October 2024, the 2nd respondent effected a withdrawal of Kshs. 30,000/- from an mpesa agent located at Nairobi Area provincial headquarters which was meant to facilitate his continued unlawful arrest and detention and on 21st October 2024, the 1st respondent sent Kshs. 10,000/- to a DCI officer known as Elias Mwirigi attached at Nairobi Area provincial headquarters offices. **The 4th, 6th & 7th Respondents’ Case** 1. Corporal James Nzyoka No. 79589 swore Replying Affidavit on behalf of the 4th, 6th and 7th Respondents. According to the 4th, 6th and 7th Respondents, the 1st respondent lodged a complaint at Langata Police Station vide **OB No. 42/19/8/2024** and was referred to DCI Nairobi Regional Headquarters. 2. The deponent and his co-investigators including the 4th respondent were officially assigned to investigate the complaint lodged by the 1st respondent. The deponent denied the assertion by the petitioner that he was subjected to intimidation and harassment. 1. The deponent avers that on 17th October 2024, his fellow officers namely PC Rono, PC Nyabera, PC Kenei Billy, PC Elias Mwirigi were instructed by their team leader, the 4th respondent to trace and rarest the petitioner. They intercepted the petitioner within Rongai township on the same day at around 2100 hours where they introduced themselves and thereafter the 4th respondent joined PC Nyabera, PC Rono, PC Mwirigi and himself and they proceeded back to Rongai Township in the company of the petitioner. 2. On arrival at Bagathi Greens Estate, the petitioner was requested to lead them to his house but he began shouting in protest claiming that he never resided within Bagathi Greens Estate. The deponent states that the 5th respondent was contacted while he was on night duties and he availed himself and assisted in identifying the petitioner’s house which is Terrace Apartment House Number B5. During the petitioner’s arrest and search of his residential house, all items were recorded in his presence and the petitioner was booked in the morning at 5.13 am vide Occurrence Book No. 2 dated 18th October 2024 at Capitol Hill Police Station after completing search at his residential house. The deponent avers that the 24 hour duration expired past normal court working hours and the court wasn’t sitting until the following Tuesday on 22nd October 2024 when the petitioner was presented at Kibera Law Courts whereby they sought custodial orders which were granted as per the orders of the court dated 22nd October 2024. The petitioner however declined to record his further statement upon his arrest to clarify some of the facts raised by the 1st and 2nd respondents. 3. The deponent argues that the amount of Kshs. 89,185,000/- was based on the information obtained from the 1st respondent during the interview and statement recording and based on the evidence available from the relevant financial documents. 4. The 9th respondent approved the charge of obtaining money by false pretences contrary to Section 313 of the Penal Code for Kshs. 7,948,650. The deponent avers that there is no charge sheet approved by the 9th respondent for Kshs. 89,185,000/- and presented to Kibera Law Courts as any valid charge sheet must be approved by the 9th respondent with a duly registered court file number. He further states that the issues raised by the petitioner in paragraphs 9 and 10 were raised by his counsel before the Chief Magistrate’s Court in Milimani during plea taking on 30th October 2024 and the trial magistrate noted that there was no such information from the court records. 5. In Kibera Chief magistrate’s Court MCCRMISC/E979/2024, the petitioner was granted bond of Kshs. 500,000/- with a surety of similar amount on condition that if he would have secured the bond, he was to be reporting daily to capitol hill police station. However, the petitioner did not furnish the bond as directed by the court and he was escorted to capitol hill police station to assist with the investigations. On 30th October 2024, the petitioner was arraigned at Chief Magistrate’s Court Milimani whereby plea was taken and he was granted cash bail of Kshs. 400,000/-. Thus the deponent argues that the allegation raised by the petitioner that he was granted cash bail of Kshs. 200,000/- at Kibera law courts was never brought to his attention. 6. The deponent further avers that in Criminal Case No. MCCR E1114 of 2024 the 1st respondent herein neither introduced herself as a director or a shareholder of Goldenkey Travel Consultant but an employee of the said company. 7. The deponent avers that they obtained financial documents during the investigations for both the petitioner, the 1st and 2nd respondents with captured bank and mpesa transactions which shall be relied on during the hearing of Criminal Case E1114 of 2024 to prove that the petitioner actually received the alleged amount of money from the 1st and 2nd respondents and other Goldenkey Travel Consultancy company employees. He further states that during investigations of the said criminal case he and his co-investigators interviewed Nancy Nanjira Odhungo holder of Identity Card number 31938259, the 1st respondent herein and Lydiah Inyangala Keya holder of national identity card number 24847910 who are both prosecution witnesses expected to testify in the criminal case No. MCCR E114 of 2024. 8. The deponent asserts that the allegations that the 5th, 6th and 7th respondents hacked the petitioner’s mobile phones and computers to obtain evidence are falsehood and malicious aimed at damaging his reputation and that of his co-investigators. Further, the petitioner disowned the majority of the confiscated electronic exhibits as captured and only owned up to the ones forwarded to the Communications Authority of Kenya cybersecurity laboratory. He further asserts that the cyber analysis report is crucial evidence for the prosecution case for it is alleged that all the submission of visa application documents and the information relating to the payments and visa processing shared between the 1st and 2nd respondents and the petitioner are contained in the said electronic exhibits that were forwarded to Communications Authority of Kenya for analysis. Further, motor vehicle registration number KDM 279R Land Rover Discovery registered under the petitioner’s name was bought during the period when the offence was committed and is believed to be part of the proceeds of crime. **The 9th Respondent & the 1st Interested Party’s Case** 1. The 9th respondent and 1st interested party state that the strict interpretation of Article 23 of the Constitution is that a relief for conservatory orders or temporary injunctive orders is prima facie only available when a party is alleging that a right or a fundamental freedom in the Bill of Rights has either been denied, violated, infringed or threatened. The mere allegation that a right or a fundamental freedom of the petitioner has been or is likely to be contravened is not of itself sufficient to entitle the petitioner the remedies sought. Further, they aver that the petitioner has not demonstrated how the 9th respondent and the 1st interested party have violated his constitutional rights. 2. The 9th respondent and 1st interested party assert that the petition offends **Section 107 and 109 of the Evidence Act** on the burden of proof as mere generalization assertions and allegations have been made without any supporting evidence for example on the suffering occasioned by the petitioner by themselves. Further by dint of **Article 157 of the Constitution** as read together with section **5(1)(b)(i) of the Office of the Director of Public Prosecutions**, the mandate to institute and undertake criminal proceedings against any person before any court in respect of any offence alleged to have been committed lies with the Office of the Director of Public Prosecutions. **The 2nd Interested Party’s Case** 1. The 2nd interested party avers that it is an unnecessary party to the proceedings and it should be struck off the proceedings with the petitioner bearing the costs. 2. The petitioner filed a Supplementary Affidavit dated 28th May 2025 in rejoinder to the 4th, 6th and 7th respondents’ replying affidavit. He depones that it is false that the complaint initially lodged at Langata Police Station was referred to the DCI Regional Headquarters. The matter ended at Langata Police Station where officers recommended it be treated as a civil dispute. He further depones that he was subjected to intimidation, harassment and physical assault during his arrest which necessitated his treatment at Mbagathi Hospital on 18th October 2024 after being taken there by the officer on duty at Capitol Hill Police Station. 1. The petitioner avers that he refused to lead the said individuals to his residence as they neither identified themselves as police officers or produced any form of official identification. Moreover, they were all dressed in civilian clothing, arrived in an unmarked vehicle and made no attempt to clarify their authority. He further states that the allegation that he was booked on 18th October 2024 at 5.13 am at Capitol Hill Police Station are false and meant to mislead the court and the extract of the occurrence book annexed has been manipulated to fit their narrative and to defeat the ends of justice. He confirms that he was booked at Capitol Hill Police Station on 17th October 2024 and at approximately 11.26 pm, officers affiliated with the 7th respondent published his name and image on the official X account of the 7th respondent indicating that he was in custody and scheduled to be arraigned in court the following day. The petitioner avers that since 17th October 2024, the 4th to 7th respondents have unlawfully retained electronic devices belonging to himself, his spouse and his house help and they have not produced any cyber forensics report. Thus he believes that there is no intention to do so and that the continued confiscation is a calculated attempt to frustrate him. 1. The petition was disposed of by way of written submissions. **Petitioner’s Submissions** 1. The petitioner identified six issues for determination as follows; *whether the petitioner’s right to be arraigned before court within 24 hours under Article 49(1)(f) of the Constitution was violated*; *whether the petitioner’s right to be released on bond or bail, on reasonable conditions pending a charge or trial under Article 49(1)(g) & (h) of the Constitution was violated*; *whether the petitioner’s right not to be derived of freedom arbitrarily or without just cause under Article 29(a) of the Constitution was violated*; *whether the petitioner’s right to a fair trial under Articles 25(c) and Article 50 of the Constitution was violated; whether the petitioner’s right to privacy under Article 31 of the Constitution was violated* and *whether the petitioner is entitled to the sought relief.* 2. Pursuant to article 49(1)(f) of the Constitution, the petitioner submitted that he was arrested on Thursday 17th October 2024 at his home in Rongai by officers from the 7th respondent which fact was corroborated by multiple sources including a post by the 7th respondent on their official X account, a statement by Robert Nyangau who is an officer from the 7th respondent stationed at Langata Police Station and a letter dated 22nd October 2024 from the RCIO. He was deliberately detained at the police cells over the weekend instead of being presented in court on Friday 18th October 2024 thereby subjecting him to unnecessary hardship and was arraigned before Kibera Law Courts on Tuesday 22nd October 2024. Thus, he argued that he was held in custody for more than 24 hours without being brought before a court, a clear violation of his constitutional rights as enshrined in Article 49(1)(f) of the Constitution. To conceal that fact, the petitioner submitted that the 4th, 5th, 6th and 7th respondents indicated on the charge sheets that he was arrested on 18th October 2024. To buttress that point, the petitioner relied on the case of **Salim Kofia Chivui vs Resident Magistrate Butalii Law Courts & Another [2012] eKLR** where the court stated as follows:- **I therefore find and hold that the petitioner’s right under Article 49(1)(f) were breached when he was arrested on 24th March 2011, detained in police custody and arraigned before the court in Butali on 29th March 2011. The tenor and effect of these provisions is to protect any person in Kenya from unwarranted arrest and detention for any period over twenty four hours or for the period necessary to secure his production in court of the next available date in any other case a detention beyond 24 hours must be authorized by court as provided by Article 49(1)(g). Once the person’s attendance has been secure within the 24 hours, the court may order the person released or may release the person pending the charge or trial on bail or bond unless there are compelling reasons not to be released.** 1. The petitioner further argued that his right under Article 49(2)(g) & (h) of the Constitution was violated as he paid his cash bail pursuant to the reviewed cash bail of Kshs. 200,000/- by the High Court at Kibera, but the OCS at Capitol Hill Police Station acting in concert with the 4th, 5th, 6th and 7th respondents wilfully disobeyed the court order and unlawfully declined to release him from custody. The continued detention amounted to violation of his right not to be deprived of freedom arbitrarily or without just cause pursuant to Article 29(a) of the Constitution. In a further and blatant disregard of the due process, they unlawfully and without following proper procedure arraigned him before the Milimani Magistrate’s Court on the same offence with the intention of subjecting him to additional bail and bond terms. 1. The petitioner asserted that the right to a fair trial under Article 25(c) and Article 50 of the Constitution cannot be limited or suspended. He argued that his right to a fair trial has been severally violated by the respondents as he was illegally and unlawfully arraigned in two different courts in Kibera and Milimani for the same offence. Secondly the draft charge sheet in Kibera Law Courts indicated that he had allegedly obtained Kshs. 89,185,000/- but in Milimani the charge amount was drastically reduced to Kshs. 7,948,654/- which raises the credibility of the charge and the instigators behind the said allegations. He argued that the complaint is nothing more than a blatant fabrication which is quite unfair to 2. him who is being prosecuted on fabricated charges. Thirdly, he submitted that the 4th, 5th, 6th and 7th respondents have acted in concert with the 1st and 2nd respondents in a deliberate scheme to frustrate and persecute him through abuse of the judicial and criminal justice system. The said respondents, together with other officers, have subjected him to mistreatment, wilfully disobeyed court orders and unlawfully detained him at the behest of the 1st and 2nd respondents in exchange for pecuniary benefit. 3. On his right to privacy under Article 31 of the Constitution, the petitioner submitted that on 17th October 2024 when he was arrested, the 4th, 5th, 6th and 7th respondents and other officers belonging to the 7th respondent conducted a search at his house in Rongai without a warrant. They further proceeded to illegally confiscate several items belonging to him and his family which included his motor vehicles, the passports belonging to his wife and children, mobile devices belonging to his wife, house help and him, his laptop and that of his wife all of which they had no probable cause for the confiscation of the said items. Furthermore, instead of professionally producing him in court and charging him in accordance with the law, the 7th respondent unlawfully published his photograph and official name on the X platform accompanied by highly defamatory and degrading statements. The post warned the public against associating with him portraying him as a predator intent on unlawfully seizing people’s property. He submitted that the said publication was false, malicious and intended to humiliate him causing significant reputational harm and resulting in economic loss through the loss of his clients and business opportunities. 1. Whilst relying on the decision in **Gitobu Imanyara & 2 Others vs Attorney General Civil Appeal 98 of 2014 [2016] eKLR**, the petitioner submitted that in law there is no wrong without a remedy as pronounced by the Court of Appeal as follows:- **….the South African Case of Dendy vs University of Witwatersrand, Johannesburg & Others [2006] 1 LRC 291 where the Constitutional Court of South Africa held that…..The primary purpose of a constitutional remedy was to vindicate guaranteed rights and prevent or deter future infringements. In this context an award of damages was a secondary** **remedy to be made in only the most appropriate cases. The primary object of constitutional relief was not compensatory but to vindicate the fundamental rights infringement and to deter their future infringement. The test was not what would alleviate the hurt which the plaintiff contended for but what was appropriate relief required to protect the rights that had been infringed. Public policy considerations also played a significant role. It was not only the plaintiff’s interest, but the interests of society as a whole that ought as far as possible to be served when considering an appropriate remedy.** **The 8th Respondent’s Submissions** 1. The 8th respondent identified four issued for determination as follows*; whether the petitioner has established a case for infringement, violation or threat of the rights or fundamental freedoms under the Constitution of Kenya;* *whether the petitioner is entitled to the order of prohibition; whether the petitioner is entitled to the orders of certiorari* and *whether the 9th respondent’s decision to institute criminal proceedings against the petitioner was a malicious prosecution and an abuse of power.* 2. The 9th respondent submitted that it is an independent office established under Article 157 of the Constitution. Reliance was placed in the case of **Yunus Abdul Rubi & 2 Others vs Director of Public Prosecution & 2 Others [2016] KEHC 4146 (KLR)** where the court held that:- **It is clear therefore that the office of the Director of Public prosecution is an independent office with the mandate to independently institute criminal prosecutions.** 1. Further reliance was placed in the case of **Justus Mwenda Kathenge vs Director of Public Prosecutions & 2 Others, Petition No. 372 of 2013** where the court made an observation that:- **It is now trite that courts cannot interfere with the exercise of the above mandate (exercise of prosecutorial powers) unless it can be shown that under Article 157(11);** 1. **He has acted without due regard to public interest,** 2. **He has acted against the interests of the administration of justice,** 3. **He has not taken into account of the need to prevent and avoid abuse of the court process.** 4. The 8th respondent submitted that the criminal case against the petitioner is in line with its mandate having reviewed the evidence gathered by the National Police Service, the sufficiency of the evidence, together with the public interest which met the threshold in making the decision to charge the petitioner. It argued that the petitioner is inviting the court to delve into the merits of the criminal case, the accuracy and correctness of the evidence to be adduced, which is the mandate of the trial court. The facts that the petitioner has sought to present in the instant petition are matters that he should present in his defence before the trial court. Reliance was placed in the case of **Justus Mwenda Kathenge vs Director of Public Prosecutions, Attorney General & Chief Magistrate’s Court, Nairobi [2014] KEHC 7714 (KLR)**- **This court has been more than steadfast in upholding the authority and independence of the office of DPP in the prosecution of criminal matters…This Court has told the petitioners like Warsame J. did in Monari** **(supra) to go and canvas all their issues in the trial court because the DPP has not crossed the constitutional line of his mandate.** 1. The 8th respondent submitted that the petition is deficient in clarity and precision, as it fails to set out with specificity the alleged constitutional violations. Mere assertions of rights being breached, without cogent evidence or particularized instances of infringement, are insufficient. 2. On the second issue, the 8th respondent submitted that an order of prohibition is discretionary and only tenable where a public body or official has acted in excess of its powers or in contravention of natural justice and as such the order requires the public body to cease from performing a certain act. Reliance was placed o the case of **Kenya National Examination Council vs Republic *ex parte* Geoffrey Gathenji Njoroge & 9 Others [1997] KECA 58 (KLR)** where the Court of Appeal provided on what an order of prohibition is- **It is an order from the High Court directed to an inferior tribunal or body which forbids that tribunal or body to continue proceedings therein in excess of its jurisdiction or in contravention of the laws of the land. It lies, not only for excess of its jurisdiction or absence of it but also for a departure from the rules of natural justice.** 1. Further Mativo J. (as he then was) stated in High Court **J.R. Application No. 621 of 2017 R vs Inspector General, Director of Public Prosecutions & 3 Others** :- **The power to stay or prohibit criminal proceedings is meant to advance the rule of law and not frustrate it. The constitutional provision in Article 157(10) of the Constitution ensures that the DPP has complete independence in his** **decision making process 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….** 1. The 8th respondent argued that there is no evidence that it acted in contravention of the rules of natural justice. It is therefore incumbent upon the petitioner to establish that its decision to institute charges against him was vitiated by illegality and actuated by maliciousness. The 8th respondent further submitted that an order of certiorari will only be issued if the decision is without jurisdiction or in excess of jurisdiction or where the rules of natural justice are not complied with, which is not the case herein. Reliance was placed in the case of **Associated Provincial Pictures Houses Limited vs Wednesbury Corporation (1947) 1 KB 223** where Lord Greene stated:- **…that courts would not interfere with the exercise of discretionary powers unless the discretion was exercised in bad faith, dishonestly, unreasonably or in regard to extraneous matters or if the authority concerned failed to consider relevant matters.** 1. Further reliance was placed in the case of **Wainaina vs Attorney General (2008) KLR** at page 621:- **To sustain his claim, the applicant must show that the DPP’s decision was so manifestly wrong as to amount to an unreasonable, irregular or improper exercise of his power, in Wednesbury terms and further that no AG (read DPP) properly directing himself, could on the evidence reasonably or regularly or properly have formed a decision not to direct a prosecution.** 1. On the final issue, the 8th respondent submitted that its decision to charge was based on the evidence placed before them by the investigating authority. The 8th respondent relied on the case of **MMS vs Benjamin Mutua Matolo & Another [2022] eKLR** whereby the court rightfully quoted the case of **Mbowa vs East Mengo District Administration [1972] EA352** where the East African Court expressed itself as follows on the law guiding the tort of malicious prosecution as follows:- **The action for damages for malicious prosecution is part of the common law of England…The tort of malicious prosecution is committed where there is no legal reason for instituting criminal proceedings….** **Its essential ingredients are:** 1. **The criminal proceedings must have been instituted by the defendant;** 2. **The defendant must have acted without reasonable or probable cause i.e there must have been no facts, which on reasonable grounds, the defendant genuinely thought that the criminal proceedings were justified;** 3. **The defendant must have acted maliciously in that he must have acted in instituting criminal proceedings, with an improper and wrongful motive, that is, with an intent to use the legal process in question for some other than its legally appointed and appropriate purpose; and** 4. **The criminal proceedings must have been terminated in the plaintiff’s favour, that is the plaintiff must show that the proceedings were brought to a legal end and that he has been acquitted of the charge.** **The plaintiff, in order to succeed, has to prove that the four essentials or requirements of malicious prosecution as set out above, have been fulfilled and that he has suffered damage. In other words, the four requirements must unite in order to create or establish a cause of action. If the plaintiff does not prove them, he would fail in his action.** 1. The 8th respondent argued that mere prosecution is not sufficient as the petitioner has to prove all the four elements of malicious prosecution for liability to attach. 2. Further, the court ought to check abuse of prosecutorial power where the evidence is presented to the court. Reliance was placed in the case of **Douglas Maina Mwangi vs Kenya Revenue Authority & Another High Court Constitutional Petition No. 528 of 2013** D.S. Majanja J. held:- **When dealing with the decision as to whether or not to prosecute, the office of the DPP exercises independent judgment and the court cannot interfere unless it is shown that the exercise is contrary to the constitution, in bad faith or amounts to an abuse of the court process. I do not find any reason or ground to intervene in that decision, nor is it the obligation of the court to supervise the minutiae of investigation and prosecution.** **The 2nd Interested Party’s Submissions** 1. The 2nd interested party identified one issue for determination which is whether it is a necessary party to the proceedings. The 2nd interested party argued that it is a well settled principle that a party may only be joined to a suit where their presence is necessary for effective and complete adjudication of the issues before the court. As to who is an interested party, the question is well settled by the Supreme Court in **Trusted Society of Human Rights Alliance vs Mumo Matemo & 5 Others [2014] eKLR** when it held as follows:- **Consequently, an interested party is one who has a stake in the proceedings though he or she was not a party to the cause ab initio. He or she is one who will be affected by the decision of the Court when it is made, either way. Such a person feels that his or her interest will not be well articulated unless he himself or she herself appears in the proceedings and champions his or her cause.** 1. The 2nd interested party maintained that it has no discernible legal or factual interest in the subject matter of the petition nor will any decision arrived at affect it. Further the petitioner has not pleaded or demonstrated any nexus that would justify its continued participation. Its inclusion serves no legitimate purpose and only operates to saddle it with unnecessary expenses and prejudice. 1. The 2nd interested party cited the case of **Werrot and Company Ltd & Others vs Andrew Douglas Gregory & Others [1998] eKLR** as quoted in **Boniface Omondi vs Mathare Youth Sports Association & Another [2021] eKLR** where the court in determining the test for whether a party is a necessary party to a proceeding, held:- **For determining the question of who is a necessary party there are two tests; (i) there must be a right to some relief against such a party in respect of the matter involved in the proceeding in question and (ii) it should not be possible to pass an effective decree in the absence of such a party.** 1. On the first test, the 2nd respondent submitted that the petitioner has pleaded facts and particulars of infringement of his rights by the 1st to the 9th respondent and none of those claims have been shown to have a nexus with it to which the petitioner can seek reliefs against. Further, it is clear that the controversy is between the petitioner and the respondents. On the second test, it submitted that a perusal of the petition shows that the only mention of the 2nd interested party appears at paragraph 34 of the supporting affidavit to the effect that it conducted a wedding of an individual who is presumably the person of interest to them. The petitioner has not pleaded any claims or reliefs sought against it. Furthermore, the said wedding, if any, is not the subject of the proceedings before the court. it therefore follows that without a claim against it, its joinder was unnecessary, especially noting that an effective decree can be passed without the 2nd interested party being part of the proceedings. As such, the 2nd interested party argued that it should be struck off the proceedings for misjoinder pursuant to **Order 1 Rule 10(2) of the Civil Procedure** **Rules**. To buttress that point reliance was placed in the case of **Bomet Technical Institute Limited t/a Lomu Investments vs Rutoh & 22 Others; County Government of Bomet (Interested Party) [2023] KEELC 16636 (KLR)** where the court held:- **It can be deduced from the above holding that a party whose presence in a suit cannot help the court determine the subject matter of the suit is an unnecessary party and should be struck out of the proceedings.** **Up to this point, the Court is lost as to why the respondent/plaintiff herein would insist to have the 1st – 22nd applicants/defendants stay in theproceedings when they have clearly stated that they are not in possession thereof save for the 23rd defendant and neither do they have any interest or claim to the same, such that in the event the court agrees with the respondent/[plaintiff, would there be any culpability ascribed to the 1st – 22nd applicants/defendants that was capable of execution and secondly would the participation of the 1st – 22nd applicants enable the court to effectually and completely adjudicate upon and settle all questions involved in the suit.** **In my opinion and upon acting very cautiously and carefully and after considering all facts of the case without embarking upon the merits of the suit, I find no semblance of a cause of action’ as against the 1st to 22nd defendants excluding the deceased 3rd and 6th defendants herein in regard to the execution of the order sought in the suit as there is no direct and real interest in the reliefs sought against them and therefore they are not necessary parties herein. Their presence in the suit is not necessary for effectual and complete settlement of all questions in the suit as the orders which the plaintiff seeks in the suit does not affect them.** **To this effect I allow the application dated 29 November 2021 to the effect that the 1st to 22nd defendants names are herein struck off the suit with costs.** 1. Accordingly the 2nd respondent submitted that its name be struck off the proceedings with costs. **Analysis and Determination** 1. I have carefully considered the pleadings, the deposition of the parties and their submissions and find the following to be the issues for determination in this Petition: 2. **Whether the 2nd interested party should be struck out from the petition.** 3. **Whether the petition meets the threshold for a constitutional petition.** 4. **Whether the petitioner’s rights under Articles** **25, 29, 31, 40(1) & (2), and 49(1)(f) & (g) of the Constitution were violated.** 5. **Whether the petitioner is entitled to the orders sought.** **Whether the 2nd interested party should be struck out from the petition** 1. The 2nd interested party submitted that it was improperly joined in this proceeding because there is no identifiable take or interest that would find a cause of action against it. The petitioner did not specifically address this particular contention. 2. The law on joinder of parties and striking out of improperly joined parties is foundin the ***Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013 under Rule 5*** which states as follows: - **The following procedure shall apply with respect to addition, joinder, substitution and striking out of parties-** 1. **Where the petitioner is in doubt as to the persons from whom redress should be sought, the petitioner may join two or more respondents in order that the question as to which of the respondent is liable, and to what extent, may be determined as between all parties.** 2. **A petition shall not be defeated by reason of the misjoinder or non-joinder of parties, and the Court may in every proceeding deal with the matter in dispute.** 3. **Where proceedings have been instituted in the name of the wrong person as petitioner, or where it is doubtful whether it has been instituted in the name of the right petitioner, the Court may at any stage of the proceedings, if satisfied that the proceedings have been instituted through a mistake made in good faith, and that it is necessary for the determination of the** **matter in dispute, order any other person to be substituted or added as petitioner upon such terms as it thinks fit.** **The Court may at any stage of the proceedings, either upon or without the application of either party, and on such terms as may appear just—** 1. **order that the name of any party improperly joined, be struck out; and** 2. **that the name of any person who ought to have been joined, or whose presence before the court may be necessary in order to enable the court adjudicate upon and settle the matter, be added.** 3. **where a respondent is added or substituted, the petition shall unless the court otherwise directs, be amended in such a manner as may be necessary, and amended copies of the petition shall be served on the new respondent and, if the court thinks, fit on the original respondents.** 4. The principle that misjoinder cannot fatally invalidate a cause of action that is properly before the Court was underscored by the Supreme Court in **Ndii &** **others v Attorney General & others (Petition E282, 397, E400, E401, E416 & E426 of 2020 & 2 of 2021 (Consolidated)) [2021] KEHC 9746 (KLR) (Constitutional and Human Rights) (13 May 2021) (Judgment)** where it was held as follows: **Be that as it may, order 1 rule 9 of the Civil Procedure Rules is clear that a suit cannot be defeated for misjoinder or non-joinder and that what the court should be bothered with is the determination of the rights of the parties; that rule reads as follows: No suit shall be defeated by reason of the misjoinder or non- joinder of parties, and the court may in every suit deal with the matter in controversy so far as regards the rights and interests of the parties actually before it.** **To the extent that this rule is applicable to the petitions such as the one before court, we can confidently say that regardless of whether the 1st respondent has been properly joined to this suit, this court is in good stead and ideally placed to ‘deal with the matter in controversy so far as regards the rights and interests of the parties actually before it.** 1. That notwithstanding, the Court in **Youth Limited v Kihiko & another; Kenya Railways Corporation (Intended Defendant) [2024] KEELC 1413 (KLR)** observed thus: **Courts have held that a party is necessary to a suit where it is shown that the legal reliefs sought would directly affect the person sought to be joined, to avoid a multiplicity of suits or where it is shown that the Defendant cannot effectually set a defence unless that person is joined in it. This position was set out in the Ugandan case of Departed Asians Property Custodian Board v Jaffer Brothers Ltd [1999] 1 EA 55 quoted with approval by the Court of Appeal in Civicon Limited v Kivuwatt Limited & 2 others [2015] eKLR as follows:** **A clear distinction is called for between joining a party who ought to have been joined as a defendant and one whose presence before the Court is necessary in order to enable the court effectually and completely adjudicate upon and settle all questions involve in the suit. A party may be joined in a suit, not because there is a cause of action against it, but because that party’s presence is necessary in order to enable the court effectually and completely adjudicate upon and settle all the questions involve in the cause or matter…For a person to be joined on the ground that his presence in the suit is necessary for effectual and complete settlement of all questions in the suit one of two things has to be shown. Either it has to be shown that the orders, which the plaintiff seeks in the suit, would legally affect the interests of that person, and that it is desirable, for avoidance of multiplicity of suits, to have such a person joined so that he is bound by the decision of the Court in that suit. Alternatively, a person qualifies, (on an application of a Defendant) to be joined as a co-defendant, where it is shown that the defendant cannot effectually set a defence he desires to set up unless that person is joined in it, or unless the order to be made is to bind that person*.*** The Court of Appeal also quoted its earlier decision in **Meme v Republic (2004) KLR637** wherein it held that joinder will be permissible: 1. **Where the presence of the party will result in the complete settlement of all the question involved in the proceedings;** 2. **Where the joinder will provide protection for the rights of a party who would otherwise be adversely affected in law: and** 3. **Where the joinder will prevent a likely course of proliferated litigation.”** 4. As to the meaning of cause of action, this phrase simply describes the existence of facts that would give rise to a claim that is properly founded in law. In **Isaiah Ondiba Bitange v & 3 others v Institute of Engineers of Kenya another [2017]eKLR** the Court explained thus: **A cause of action was defined by Obi Okoye — Essays on Civil Proceedings,[1] thus — "By a cause of action is meant any facts or series of facts which are complete in themselves to found a claim or relief.” In the case of Drummond Jackson v. British Medical Associations & Ors., Lord Pearson stated as follows:-** **“........... the expression “reasonable cause of action” ....No exact paraphrase can be given, but I think “reasonable cause of action” means a cause of action with some chance of success when......... only the allegations in the pleading are considered, if it is found that the alleged cause of action is to fail, the statement of claim should be struck out.”** **The Supreme Court of Nigeria in the case of Oshoboja v. Amuda & Ors; held that a reasonable cause of action means a cause of action with some chances of success, when only the allegations in the Statement of Claim are considered. Our law is the law of the practitioner rather than the law of the philosopher. Decisions have to draw their inspiration and their strength from the very facts which framed the issues for decisions.** 1. The Court went further to state as follows: **… The pith and marrow of it is that where on a consideration of only the allegations in the pleading the court concludes that a cause of action with some chance of success is shown then that pleading discloses a reasonable** **cause of action. Person, J in Drummond Jackson v British Medical Association, the definition of a cause of action was determined as an act on the part of the Defendant which gives the Plaintiff his cause of complaint….** 1. In the same way, the Court in **Njunge v Ministry of Interior & Coordination of National Government & 3 others [2024] KEHC 4676** citing a number of authorities with approval noted as follows: **That the application discloses no reasonable cause of action or defence in law. In DT Dobie & Co. (Kenya) Limited v Muchina & Another [1982] KLR, the Court of Appeal defined reasonable cause of action to mean “an action with some chance of success when allegations in the plaint only are considered. A cause of action will not be considered reasonable if it does not state such facts as to support the claim prayer…** 1. The petitioner has not demonstrated with exactitude why the 2nd interested party should be made a party in these proceedings. The petitioner only mentions the 2nd interested party in the supporting affidavit to the notice of motion application, in relation to marriage between the 1st and 2nd respondent which marriage is not an issue in contention in the petition. Further, the petitioner has not sought any relief against the 2nd interested party. Interestingly, there is no mention of the 2nd interested party in the petition. I thus find that the petitioner has not substantiated or demonstrated that the 2nd interested party is a necessary party or indeed there is any reasonable cause of action against it in view of the facts of the instant case. Thus, the 2nd interested party is struck out from this petition with costs payable by the Petitioner. **Whether the petition meets the threshold for a constitutional petition** 1. A proper petition must satisfy the essential threshold of a constitutional petition. It must be placed with some reasonable degree of precision by identifying the constitutional provisions that are alleged to have been violated or threatened to beviolated and the manner of the violation and/or threatened violation ocurred. This principle was enunciated in **Anarita Karimi Njeru vs Republic (1979) KLR** where the court stated as follows:- **If a person is seeking redress from the High Court on a matter which involves a reference to the Constitution, it is important (if only to ensure that justice is done to his case) that he should set out with precision that of which he complains the provisions said to be infringed and the manner in which they are alleged to be infringed.** 1. The principle in **Anarita Karimi** was further enunciated in **Mumo Matemu vs** **Trusted Society of Human Rights Alliance (2014) eKLR** where the court said:- **We cannot but emphasize the importance of precise claims in due process, substantive justice and the exercise of jurisdiction by the court.** **The principle in Anarita Karimi Njeru underscores the importance of defining the dispute to be decided by the court. In our view, it is a misconception to claim as it has been in recent times with increased frequency that compliance with rules of procedure is antithetical to Article 159 of the Constitution. Procedure is also a handmaid of just determination of cases cannot be dealt with justly unless the parties and the court know the issues in controversy. Pleadings assist in that regard and are a tenant of substantive justice, as they give fair notice to the other party. The principle in Anarita Karimi Njeru that established the rule that requires** **reasonable precision of framing of issues in Constitutional petitions is an extension of this principle.** 1. It is thus clear from the above case law that it is not sufficient to merely cite constitutional provisions. One must provide the particulars of the allegedinfringement to enable the respondent to be able to respond and/or answer the allegations or complaints. Furthermore, one must provide the manner in which the alleged violations were committed and the extent violation occurred. 2. In the instant case, the petitioner has premised his petition on Articles 19(2), (3), 20, 21(1), 22, 23, 25, 26, 27, 28, 29, 31, 35, 40, 48, 49(1)(a), (f), (g), (h), 50(1), 73 and 75 of the Constitution. However, a closer scrutiny shows that the petition substantively focuses on the rights under Articles 25, 29, 31, and 49(1)(a),(f) & (g). The petitioner has explicitly alleged that his right to freedom and security of the person, right to privacy, right to property, right to be brought before a court as soon as reasonably possible but not later than twenty four hours after being arrested and right to be informed of the reason for detention were violated by the respondents. The manner of violation is explained by the petitioners who claims that the 4th, 5th and 6th respondents arrested him and failed to present him before a court within 24 hours; failed to give him reasons for his arrest; tortured him; searched his home; defamed him by parading his photograph on their x page and making degrading remarks and subjecting him to inhuman, cruel and degrading treatment by carrying him away forcefully in presence of his wife and children and by invasion on his privacy by compelling him to surrender his passwords to his mobile phones and computers illegally. 3. The manner of pleading, in my considered view, sufficiently satisfies the threshold required for a constitutional petition. **Whether the petitioner’s rights under Articles** **25, 29, 31, and 49(1)(a), (f) & (g) of the Constitution were violated** 1. The petitioner has argued that his rights under Articles 25, 29, 31, and 49(1)(a), (f) & (g) of the Constitution have been infringed. 2. **Articles 25, 29, 31, 40(1) & (2), and 49(1)(f) & (g) of the Constitution** stipulate as follows:- 3. **Article 25 provides:-** **Despite any other provision in this Constitution, the following rights and fundamental freedoms shall not be limited-** 1. **Freedom from torture and cruel, inhuman or degrading treatment or punishment;** 2. **Freedom from slavery or servitude;** 3. **The right to a fair trial; and** 4. **The right to an order of habeas corpus.** **Article 29 provides:-** 1. **Every person has the right to freedom and security of the person, which includes the right not to be-** 2. **Subjected to any form of violence from either public or private sources;** 3. **Subjected to torture in any manner, whether physical or psychological;** 4. **Subjected to corporal punishment;** 5. **Treated or punished in a cruel, inhuman or degrading manner.** **Article 31 provides:-** **Every person has the right to privacy, which includes the right not to have-** 1. **Their person, home or property searched;** 2. **Their possessions seized;** 3. **Information relating to their family or private affairs unnecessarily required or revealed; or** 4. **The privacy of their communications infringed.** **Article 49(1)(a), (f) and (g)** **provides:-** **(1) An arrested person has the right-** * 1. **To be informed promptly in a language that the person understands, of-** 1. **The reason for the arrest;** **f. To be brought before a court as soon as reasonably possible, but not later than-** 1. **Twenty four hours after being arrested; or** 2. **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;** **g. At the first court appearance, to be charged or informed of the reason for the detention continuing, or to be released;** ***Rights under Article 49(1)(a), (f) and (g) of the Constitution****.* 1. A key complaint advanced by the petitioner is that he was not presented before court within twenty-four hours after his arrest. 2. Article 49(1)(f) of the Constitution provides that an arrested person must be taken to court within twenty four hours of their arrest. In the case of **Lucas Omoto Wamari vs Attorney General & Another (2014) eKLR**, the court referring to that prescribed period stated:- **To support this argument counsel relied on the decision of Raditshego Godfrey Mashilo and Minister of Police vs Jacobus Michael Prinsloo (2012) ZACSA 146 where the Supreme Court of Appeal in South Africa held that where the law prescribed the out limit for detention, the duty was on the police to bring him to court as soon as possible without waiting for the time to lapse.** 1. The purpose for which that restricted period was set out in the Constitution was discussed in the case of **Hussein Abdillahi Ndei Nyambu vs Inspector General of Police & Another (2014) eKLR** where the court stated:- **Thus there is a violation of the constitution when a person is held beyond the 24 hours irrespective of the reason. In Salim Kofia Chivui vs Republic Nairobi Petition No. 256 of 2011 (2012) eKLR the court stated that, “The tenor and effect of these provisions is to protect any person in Kenya from unwarranted arrest and detention for any period over twenty-four hours or for the period necessary to secure his production in court of the next available date. In any case any detention beyond 24 hours must be authorized by court as provided by Article 49(1)(f). once the person’s attendance has been secured within the 24 hours, the court may order the person** released **or may release the person pending charge or trial on bail or bond unless there are compelling reasons.** 1. In the present case the petitioner contends that he was arrested on 17th October 2024 at 2.00 am in the morning and was produced in court in Kibera on 22nd October 2024. The 5th respondent states that the petitioner was arrested on 18th October 2024 at 5.13 am and the court was not sitting until the following Tuesday on 22nd October 2024 when the petitioner was presented at Kibera Law Courts 1. I have perused the court record and noted that the issue of the date of arrest was raised by the petitioner before the magistrate’s court in Kibera in MCCRMISC/E979/2024 whereby the learned magistrate directed that the said issue of the date of arrest be canvassed in the main suit and not at the preliminary stage. The learned magistrate then proceeded to grant bond to the petitioner at the sum of Kshs. 5 million with a surety of similar amount and directed that should the petitioner secure the said bond, he should report daily for ten days at Capitol Hill Police Station to enable finalization of the investigations. In the event he was unable to secure the bond terms, the petitioner was to be held at the said Capitol Hill Police Station for the ten days. It is clear from the record that the petitioner did not raise the bond and was therefore held in custody in the said police station. The petitioner has averred that the said bond terms were reviewed by the High Court in Kibera to Kshs. 200,000/- however he has not annexed the said court orders showing that the bond was reduced by the High Court. Notably, the petitioner has only produced a receipt of cash bail of Kshs. 200,000/- emanating from Misc. Criminal Case No. E979 of 2024 and not the High Court order reviewing the bond terms. The petitioner further added that instead of being released on the said cash bail, he was moved to the magistrate’s court at Milimani vide MCCRE1114 of 2024 subjecting him to fresh bail terms. It is my considered view that since the Criminal Case MCCR E361/2023 is ongoing in the trial court this court must exercise caution in making any pronouncements at this stage. This issue is best raised in the trial court which will then make a determination of the same and the effect thereof on the proceedings before it. Any findings by this court on the issue at the current stage will be prejudicial to the pending proceedings in the criminal case and eventual outcome, particularly following the direction of the trial court that the issue will be dealt with in the main suit. 1. On the issue of the inflated charge sheet, from the record it is clear that the charge sheet quoting Kshs. 89,185,000/- was not approved by the DPP. The 4th respondent filed a miscellaneous application in the magistrate’s court in Kibera vide Misc. Criminal Application No. 9797 of 2024 revealing that their primary investigations showed that petitioner received money from the complainant to the tune of Kshs. 89,185,000/- but they needed more time to analyse the bank and mpesa accounts which were voluminous to be able to get the exact total figure of the amount of money obtained by the petitioner to be able to prepare the charges. The petitioner was then charged in MCCR E1114 of 2024 for the offence of obtaining money by false pretenses contrary to Section 313 of the Penal code for the amount of Kshs. 7,948,650/-. The said charge sheet is approved by the DPP as ordered by their stamp on 30th October 2024. Therefore, the petitioner has not demonstrated that the respondents exaggerated the amount of money allegedly obtained as a ploy to make it difficult to secure bail or bond in contravention of his rights. **Breach of right to privacy.** 1. The petitioner argues that the 4th, 5th and 6th respondents violated his right to privacy by searching his home at 2.00am instead of him being summoned to the police station; compelling him to give passwords to his mobile phones and computers illegally and unprofessionally parading his photo on the 7th respondent’s x social media platform warning members of the public of the dangers of associating with him. It is not lost to this court that the matter is ongoing in the magistrate’s court which would be the best forum to ventilate the said issues as this court by making pronouncements on the same may prejudice the outcome of the criminal matter. That notwithstanding, the petitioner raised the issue of the items allegedly confiscated by the 4th, 5th and 6th respondents in the lower court case and the learned magistrate on 6th February 2025 directed that the said items ought to be returned to the petitioner. Thus, the petitioner ought to enforce the said orders against the respective respondents as he has a valid court order already. 1. In the whole, the petitioner has not demonstrated any bad faith or abuse of office in the in the conduct of the investigations and eventual prosecution. The police have demonstrated that they acted on a complaint that was lodged against the Petitioner which upon interviewing of witnesses led to other relevant material being dismissed in the inquiry mounted against the Petitioner. The Director of Public Prosecution maintained that it objectively reviewed the evidence presented by the investigators independently and formed the view that there was sufficient evidence to sustain a prosecution. 2. As was stated in **Denis Joseph Shijenje & another v Kenya Revenue Authority & 2 others [2021] KEHC 12572 (KLR)** the Court should be slow to interfere with the constitutional mandate of the DPP when there is no clear evidence of abuse of office established. The Court stated: **“37. I find that the office of the Director of Public Prosecution being an independent institution established under the Constitution, the court can only interfere with or interrogate its actions where there is contravention of the Constitution. In the case of Paul Ng’ang’a Nyaga** **v Attorney General & 3 others (2013) eKLR, it was held that “this** **court can only interfere with and interrogate the acts of other constitutional bodies if there is sufficient evidence that they acted in contravention of the Constitution.”** 1. Additionally, the Court in **Francis Anyango Juma vs The Director of Public Prosecutions and another [2012] KEHC 2618 (KLR)** the Court expressed itself as follows: **“Clearly, the intention under the Constitution was to enable the Director of Public Prosecutions to carry out his constitutional mandate without interference from any party. This court cannot direct or interfere with the exercise by the DPP of his power under the Constitution or direct him on the way he should conduct his constitutional mandate, unless there was clear evidence of violation of a party’s rights under the Constitution, or violation of the Constitution itself.”** 1. The petitioner has not demonstrated that the prosecution was commenced without any reasonable or just cause, or was actuated with illegality or procedural impropriety that would warrant the same to be quashed by this court. 2. In the circumstances, this Court finds that this Petition is devoid of merit and is hereby dismissed with costs to the respondents and the interested parties. ***DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI THIS 20TH DAY OF AUGUST, 2026.*** **\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_** **L N MUGAMBI** **JUDGE**