https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8998

Ogot v Director of Criminal Investigations & 2 others (Constitutional Petition E227 of 2026) [2026] KEHC 8998 (KLR) (Constitutional and Human Rights) (24 June 2026) (Ruling) Neutral citation: [2026] KEHC 8998 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Law Courts) Constitutional and Human Rights Constitutional Petition E227 of 2026 RE Aburili, J June 24, 2026 Between Calvin Kirochi Ogot (CKO) Petitioner and Director Of Criminal Investigations 1st Respondent The Inspector General of Police 2nd Respondent The Director of Public Prosecutions 3rd Respondent Ruling 1.Vide his petition filed simultaneous with the Notice of motion dated 8th April, 2026, the petitioner Calvin Kirochi Ogot who is self-represented seeks the following reliefs:a.A Declaration that the Criminal Process is unconstitutional and an abuse of process;b.An Order Staying the Criminal Proceedings;c.Anticipatory bail on a personal free bond;d.Orders restraining arrest, detention or harassmente.Constitutional damages for violation of fundamental rightsf.Costs. 2.In the Notice of Motion application, the petitioner prays for interim conservatory orders staying his arrest, detention, Plea Taking and or any further Criminal proceedings against him in Criminal Case No. MCCR E1951/2026. The Petitioner also seeks that the court admits him to anticipatory bail on a personal bond (free bond) or on such reasonable terms pending hearing and determination of the Petition. 3.The petitioner further, by his further supplementary affidavit was granted leave at the oral hearing of the application to include a prayer that his fridge which was allegedly confiscated by the Police be returned to him as there is no inventory taken of the same to indicate that it is an exhibit in the criminal case. 4.The petitioner’s case is hinged on his supporting affidavit to the application and to the petition as well as his witness statement dated 8th April, 2026 in which he states that on or about the 15th day of August 2025, his refrigerator, MIKA Model No. MRNF4D522GBV was forcibly taken away by persons from Ideal Appliances Company Limited, trading as MIKA Appliances. He claims that the said persons were accompanied by armed police officers from the Directorate of Criminal Investigations and the Officer Commanding Station, who seized, conducted an illegal search at his premises without a lawful warrant, taking no inventory and without lawful authorization. 5.He asserts that as at the time of seizing his said fridge, he had already fully paid for the said refrigerator through Mpesa payment of Kshs 98,935.15 vide transaction No. PAR11K3KED and NCBA Loop Payment of Kshs 53,030 vide Transaction No. NHLEB9UN7TSR. He therefore claims that he was deprived of his refrigerator together with the purchase price amounting to Kshs 151,965.15. 6.The petitioner avers that after his fridge was seized, he received a phone call from the advocate for Ideal Appliances, the complainant and told to go to Embakasi Police Station to record a statement ‘under false pretences’ and to execute a Deed of Settlement and Indemnity. According to the petitioner, he declined to go to the police station because the demands were unlawful and coercive. 7.He avers that for nearly seven months after the seizure of his fridge, no criminal charges were preferred against him and that it was after he filed Constitutional Petition No. E146 of 2026 on 3rd March 2026 is when he was served with a purported police bond requiring him to appear in court via electronic means. He denies being arrested, detained, summoned or required to execute any police bond. He also claims that the said police bond contained incorrect details and was not signed or executed by him and that neither did he pay for the same. 8.The petitioner claims that the said criminal process was initiated in retaliation to his constitutional petition no. E146 of 2026 and is intended to intimidate and frustrate his constitutional petition. 9.He asserts that he is a family man and sole provider and therefore his arrest or detention would cause serious hardship to his dependants. That he has a fixed place of residence and is willing to comply with court directions. He states that he has no intention of absconding as MIKA Appliances Ltd remain in possession of his MIKA fridge and the money stated above and that he respects the court process. 10.The petitioner alleges that his rights under Articles 29,40,47 and 50 of the Constitution are violated and continue to be violated and that this Court has supervisory jurisdiction under Article 165 of the Constitution to prevent misuse of criminal process and his fundamental rights. He annexes many documents showing that he had lodged complaints with various agencies on the consumer protection and quality of the refrigerator that he bought. 11.Opposing the application, the Respondents filed a Replying affidavit sworn by NO. 67474 CPL Josephat Makai, on 20th May 2026, deposing that he is the investigating officer in the impugned criminal proceedings. 12.According to the Respondents, they investigated a complaint where the petitioner is alleged to have gone to Ideal Appliances Limited based along Mombasa Road on 27th January, 2021, bought one Fridge, brand MIKA Model Number MKNFD490SS worth Kshs 98,935 and was issued with sale invoice number 20210947 and Delivery Note Number 20209159 as annexed. 13.That the said documents stated above show that the date of delivery was 27/1/2021. However, that on 11th, February, 2025, the petitioner is alleged to have lodged a complaint with the company that the aforesaid Fridge was faulty upon which a sales coordinator was dispatched by the company to go and check on the alleged defects. 14.That upon inspection, the Fridge had leakage upon which the petitioner was given a temporary fridge to go and use as the company took possession of the faulty fridge for repairs, on 14th February, 2025 15.That when the petitioner was asked to avail copies of the purchase receipt and warranty for the defective fridge, via WhatsApp, he availed receipts showing that the receipt was dated 1st November, 2023 with a different Sales Invoice number 20230974 and warrant date showing the same date but with no delivery note. 16.That the company started to carry out internal investigations while it supplied the petitioner with a different model fridge on 25th February 2025, but that the petitioner refused to accept the fridge claiming that it was old , demanding for anew fridge. 17.That, that notwithstanding, the company was willing to give the petitioner a new fridge on condition that they split the cost which was very high, into two, so that he pays Kshs 106,000 which was half the cost of the new fridge 18.That as the company examined the documents submitted by the petitioner, they discovered that the said documents were totally different from those issued by the company for the purchase of the MIKA fridge, with the availed documents showing a different receipt serial number 113076 and not 113067, with the invoice numbers also being different when compared to that for the MIKA fridge which he had bought in 2021. That even the person who collected the fridge was different, with the delivery showing that he was the collector yet it was JANE Njeri who had collected the MIKA Fridge. Additionally, that investigations revealed that the MIKA brand Model MRNF4D490SS was never in stock by the year 2022 hence there is no way he could have bought it in 2023. The two sets of documents are annexed to the affidavit in reply to the application. 19.That a complaint was therefore lodged for forgery via OB NO. 30/15/8/2025. That it became apparent that the warranty period for the original fridge was two years, which period had since lapsed hence, the petitioner allegedly forged documents to show that the fridge was bought in 2023 so that he could get a new fridge to replace the faulty one. That even the stamps used on the forged documents were the ones already abandoned by the company and not in use as at 2023. 20.That upon review of the evidence gathered, an investigations file was opened and the 3rd respondent preferred charges against the petitioner as per the annexed charge sheet and in accordance with Article 157 of the Constitution, the ODPP Act and the National Prosecution Policy. 21.The respondents deny that there is any abuse of office, breach or infringement of the Petitioner’s Constitutional and Human Rights. They assert that the petitioner was called several times and requested to go and record his statement in connection with the investigations but that he refused to go, despite a notice to compel his attendance under section 52 of the National Police Service Act. 22.The respondents maintain that they have sufficient evidence to mount a criminal charge and that a civil suit does not bar criminal investigations and charges being preferred. 23.The respondents urge this court to exercise judicial restraint so as not to interfere with the constitutional and statutory mandates of the respondents and to allow the prosecution of the petitioner to go on in the public interest as there was sufficient evidence against him. 24.This court was urged to dismiss the application for conservatory orders. 25.In his further supplementary affidavit sworn on 20th May, 2026, the petitioner deposes, materially, asking the court to allow him add new evidence and the prayer for release of his fridge, demonstrate continuing prejudice and ongoing harm and seek interim conservatory orders pending the hearing of the main petition.. he also claims that the respondents had not complied with court orders in that despite being served with the petition and application, they had not filed any replying affidavit as at the time that he was deposing his further supplementary affidavit. 26.The petitioner averts that he continues to suffer prejudice, reputational injury, economic hardship, mental distress and violation of his constitutional rights arising from the ongoing criminal case at MAKADARA CM CR 1951 of 2026 and the continued deprivation of his MIKA Refrigerator Model MRNF4D522GBV, which fridge his family use for food preservation and ordinary domestic use. 27.He addresses the letter written by the complainant’s advocate Mr Tonny Odera dated 28th July 2025 saying it is an admission and rubbishes what counsel calls goodwill yet his clients had illegally taken the petitioner’s property only for them to allege forgery, 28.The petitioner repeats that he bought the first fridge on Janauary 27th 2021 but that when it malfunctioned and it was returned to the dealers/ sellers, he was given another fridge and he paid a top up fee as stated above after the technicians found that the fridge was beyond repair. That since the subsequent fridge was given out of goodwill and he paid extra money, then the complainant is estopped from claiming forgery, since the ownership had passed to him. 29.He denies forging any documents and asserts that he is being framed with fabricated claims and that the fridge was either a gift or a sale and not a forgery as claimed. 30.He further asserts that when he filed Petition E146 of 2025, the complainant raised a preliminary objection claiming the dispute belonged to the Competition Tribunal which is a clear demonstration that the dispute is a consumer matter and not criminal in nature. That the complainant cannot claim that the dispute belongs to the Competition Tribunal and at the same time pursue criminal proceedings against the petitioner, which the petitioner claims, constitutes forum manipulation and abuse of process. 31.The petitioner then goes on and on stating how he lodged complaints on the quality and specifications of the fridge with CAK, KBS and IPOA. 32.He also alleges that he never recorded any statement at Embakasi Police Station and that the criminal case has no evidence or statements and accuses the police at Embakasi of acting without jurisdiction over KAMULU Police Station. He claims that no investigations have been carried out prior to seizing his fridge and instituting of criminal proceedings against him and that police officers are acting one sided on instructions of the Ideal Appliances limited, with impunity. 33.The petitioner reiterates that the fridge cannot be an exhibit as it could not forge the documents, that he was forced to record a statement and sign a settlement deed and indemnity, that he continues to suffer prejudice unlike the respondents hence, he seeks for stay of the criminal proceedings and conservatory order restitution his fridge seized by the respondents. Oral submissions 34.In his oral submissions, the petitioner submitted that he was not accorded an opportunity to go to the Police Station and that his rights have been violated. That he wanted the criminal proceedings at Makadara Law Courts stayed and that his fridge be returned as it was unlawfully taken on 15/8/2025 without inventory, warrant or chain of custody. That the replying affidavit does not mention anything and that his right to fair administrative action was denied. That he was arrested and given a fake police bond and that the case was fabricated against him yet he paid for the fridge fully. He reiterated that 14 police officers unlawfully confiscated his fridge thereby violating his right to property without following due process. That no investigations were done. He urged the court to stop his prosecution because he was never accorded a hearing and that his rights were violated. 35.On the part of the respondents, Mr. Oruko submitted opposing the application and contending that the respondents acted on a complaint lodged at Embakasi Police Station, that they were acing in the public interest and that taking the fridge was not the reason for the criminal charges. 36.That the petitioner was issued with notice to appear and give his side of the story but that he refused. That the petitioner was instead raising a defence which he is to raise before the trial court. It was submitted relying on th cases of Pauline Raget Odhiambo v ODPP and 8 others Petition 446 of 2015 on the clear constitutional mandate of the ODPP as articulated in Article 157 of the Constitution, Monari v Commissioner of Police Misc Appl 68 of 2011 on the duty of the police to investigate crime on reasonable suspicion and charge as well as Cascade Company Limited v Kenya Association of Music Production (KAMP) & 3 others [2015] KEHC 5141 (KLR) on the constitutionality of enabling legislation that provides for the offences for which a party is charged and the court being called upon not to unnecessarily prohibit the respondents from acting within its constitutional mandate. 37.It was submitted that civil disputes cannot bar criminal charges. Further submission was that the right under Article 50 cannot be violated where the petitioner is not undergoing trial and that the right to property has no relation to the criminal charges facing the petitioner. 38.In a rejoinder, the petitioner maintains that the police have no jurisdiction over the matter and that he reported to the Competition Authority, KBS and CAK, which are the appropriate forum. That there was no evidence that the police had summoned him hence his right to fair trial was violated. That the matter falls within Parklands Police Station not Embakasi and that he bought the fridge in 2021 and presented the warranty in 2025 which warranty was for 10 years. Analysis and Determination 39.I have considered the application as presented, the replying and supplementary affidavits and the arguments for and against the application by the petitioner for conservatory orders as argued in the respective parties’ oral submissions. The main issue for determination is whether the application is merited. 40.Both parties submitted on the issue of Conservatory Orders. However, none of them submitted on the issue of the grant of the anticipatory bail. 41.The authority for issuance of conservatory orders in Constitutional Petitions is found in Article 23(2) (c) of the Constitution of Kenya, 2010. Further, Rule 23 of the Constitution of Kenya, 2010 (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013 provides:Conservatory or interim orders.1)Despite any provision to the contrary, a Judge before whom a petition under rule 4 is presented shall hear and determine an application for conservatory or interim orders.2)Service of the application in sub rule (1) may be dispensed with, with leave of the Court.3)The orders issued in sub rule (1) shall be personally served on the respondent or the advocate on record or with leave of the Court, by substituted service within such time as may be limited by the Court. 42.In Invesco Assurance Co v MW (Minor suing thro' next friend and mother (HW) [2016] KEHC 5318 (KLR) the Court defined Conservatory orders as follows:“A conservatory order is a judicial remedy granted by the court by way of an undertaking that no action of any kind is taken to preserve the subject until the motion of the suit is heard. It is an order of status quo for the preservation of the subject matter.” 43.The Court in Nkunja v Magistrates and Judges Vetting Board & another [2016] KEHC 7269 (KLR) summarized three main principles for consideration when dealing with such applications as follows:“a.An applicant must demonstrate that he has a prima facie case with a likelihood of success and that unless the court grants the conservatory order, there is a real danger that he will suffer prejudice as a result of the violation or threatened violation of the Constitution.Whether, if a conservatory order is not granted, the Petition alleging violation of, or threat of violation of rights will be rendered nugatory; andThe public interest must be considered before grant of a conservatory order.” 44.Similarly, in Board of Management of Uhuru Secondary School v City County Director of Education & 2 others [2015] KEHC 2174 (KLR) the Court stated as follows at paragraphs 25-31 of the decision:“ 25.Foremost, the applicant ought to demonstrate a prima facie case with a likelihood of success and that in the absence of the conservatory orders he is likely to suffer prejudice…. 26.It is in my view not enough to merely establish a prima facie case and show that it is potentially arguable. Potential arguability is not enough to justify a conservatory order but rather there must also be evident a likelihood of success. The prima facie case ought to be beyond a speculative basis…. 28.Once the applicant has established to the court’s satisfaction a prima facie case with a likelihood of success the court is then to decide whether a grant or a denial of the conservatory relief will enhance the Constitutional values and objects of the specific right or freedom in the Bill of rights…. 29.Thirdly, flowing from the first two principles, is whether if an interim Conservatory order is not granted, the petition or its substratum will be rendered nugatory. It is indeed the business of the court to ensure and secure so far as possible that any transitional motions before the court do not render nugatory the ultimate end of justice…. 30.The fourth principle which emerges from the various cases and is well captured by the Supreme Court of Kenya in the case of Gatirau Peter Munya –v- Dickson Mwenda Githinji & 2 Others [2014] eKLR is that the court must consider conservatory orders also in the face of the public interest dogma. 31.Finally, the court is to exercise its discretion in deciding whether to grant or deny a conservatory order. The court must consequently consider all relevant material facts and avoid immaterial matters. The court will consider the applicants credentials, the prima facie correctness of the availed information, whether the grievances are genuine legitimate and deserving and finally whether the grievances and allegations are grave and serious or merely vague and reckless.” Correspondingly, the Court in Centre for Rights Education & Awareness (CREAW) & another v Speaker of the National Assembly & 2 others [2017] KEHC 9419 (KLR) noted as follows:“A party who moves the court seeking conservatory orders must show to the satisfaction of the Court that his or her rights are under threat of violation; are being violated or will be violated and that such violation, or threatened violation is likely to continue unless a conservatory order is granted. This is so because the purpose of granting a conservatory order is to prevent violation of rights and fundamental freedom and preserve the subject matter pending the hearing and determination of a pending case or Petition.” 45.Applying the principles espoused in the above decisions to the present application, the petitioner laments that his fridge was unlawfully confiscated by the police without due process yet he had fully paid for it and that he has been denied his rights to property, to fair trial, fair hearing and to fair administrative action among other rights. He asserts that the police have no jurisdiction to arrest and or charge him with an offence over a fridge which they had confiscated and which is not even an exhibit. That he had not been summoned to record any statement and that he was given a fake bond. 46.According to the petitioner, he reported the matter to various appropriate authorities regarding the defective fridge including to the Competition Authority, Kenya Bureau of Standards and Communications Authority of Kenya because his consumer rights were violated. He claims that the charges against him are fabricated. 47.The respondents on the other hand contend that a complaint was raised against the petitioner that the petitioner had faked documents which are annexed and which he allegedly used to claim for a new fridge and that investigations had revealed that the petitioner had altered the initial documents for purchase and delivery of a fridge whose warranty had since expired, for him to claim for a new fridge after the purchased fridge had become faulty after the warrant period of two years by indicating that the fridge had been bought in 2023 yet it was bought in 2021. 48.The respondents maintain that they investigated the complaint within their constitutional and statutory mandate and asked the petitioner to record a statement but he declined. 49.The petitioner is presumed innocent until proven guilty and therefore whatever finding this court may reach at this stage, does not and cannot be used against him in the criminal trial. That said, the respondents contend that they received a complaint against the petitioner after the petitioner had been given a fridge on account of documentation that he had submitted to the complainant seeking to redeem the warranty for the faulty purchased fridge, and that upon internal investigations, it was discovered that the petitioner had presented documents that did not match those that he used to purchase the fridge. This contention by the respondents’ investigator on oath has not been controverted. 50.The police were called upon to investigate the alleged forgery or uttering of false documents and their findings have been placed before this court on oath. Again, there is no evidence to the contrary, apart from the petitioner fervently alleging violation of his constitutional rights and claiming that the charges are fabricated against him. 51.I have examined the respondent’s affidavit and I find no material at this stage to suggest that the police have fabricated the charges against the petitioner. The police are under a duty to investigate complaints, that being their statutory and constitutional mandate while the DPP is charged with the prosecutorial mandate and in so doing, to make decisions that are independent and not directed by any ulterior motive and in the public interest. 52.The petitioner has not denied that he submitted the documents which are totally different from those that he was issued with in 2021 when he bought the fridge. It cannot, therefore, be correct to say that the police and the DPP are acting with malice or intended to perpetuate violation of the petitioner’s rights. 53.Neither has it been demonstrated that the continuation of the criminal charges against the petitioner is prejudicial to his rights. The petitioner being presumed innocent can sufficiently exercise his right to defend himself before the criminal court by raising the issues which he is raising in this matter should the petition be determined after the criminal case is concluded or even elect to remain silent, since the onus of proof is on the prosecution to prove his guilt beyond reasonable doubt. The petitioner claims that the issue is one for the Competition Tribunal as informed by the preliminary objection filed by the complainant challenging his Petition E146 of 2026 and that therefore no criminal charges are disclosed and that the complainant is estopped from changing its tact. 54.I however note that the petitioner never enjoined the complainant to these proceedings to give it the opportunity to state its side of the story, albeit the DPP and the Investigators were acting on the complaint received. The petitioner/Applicant himself confirms in his statement as signed that he was notified to appear before Embakasi Police Station to record his statement although he alleges that he was being forced to sign a settlement deed and indemnity which he has not demonstrates to this court that that was the purpose for which he was called upon to report to the police station. He also contradicts himself by saying that it is Parklands Police Station that had jurisdiction over his case yet in his pleadings and affidavit, he states that it is Kamulu Police Station, not Embakasi. That said, those are issues which the court will deal with in the main petition, on whether the petitioner was prejudiced by being summoned to appear before Embakasi Police station. 55.I am unable to find that the petitioner has established a prima facie case as far as his claim against the respondents in this petition is concerned. 56.I am equally unable to find that the petitioner will suffer any prejudice if the orders for stay of criminal proceedings is not granted. There is also no public interest that will suffer as a result of this Court declining to grant stay of his prosecution. Further, the balance of convenience does not tilt in his favour. 57.On the prayer for release of his fridge, I find that since the respondents allege that the petitioner was given the second fridge on account of false documentation submitted to the complainant to claim for warranty that he was not entitled to, and the fridge is the subject of investigations leading to initiation of the criminal case, I find that it will prejudice the criminal case especially now that the petitioner has not joined the complainant to these proceedings, to order for release of the said fridge to the petitioner before conclusion of the criminal case, without material being placed before this court that the fridge is not linked to the criminal charges. More so, the petitioner can rightly so apply before the criminal trial court for release of any property taken from his custody, that is not an exhibit and the court has jurisdiction to consider that application. I therefore decline to order for release of the fridge. 58.I find that the Applicant has not shown the real danger that he has been put in, or that he has a Prima facie case with a likelihood of success and whether he shall be exposed in the event the Conservatory orders are not issued. 59.On the prayer for anticipatory bail on a Personal Bond (free bond), though not submitted on, this prayer can be sought from the criminal court where the petitioner is facing criminal charges. Additionally, to grant such an order in these proceedings will be to interfere with the discretion of the trial court based on material that may be placed before that court on whether the petitioner should be released on bond or not, bail being a constitutional right which is, however, not absolute. 60.Additionally, as the criminal charges have already been instituted against the petitioner, the issue of anticipatory bail is overtaken by events. The petitioner is free to apply for his release of bond or reasonable bail terms once he takes the plea. 61.In the end, I find and hold that the petitioner has not satisfied this court that he is entitled to the orders sought in his notice of motion dated 8th April, 2026 which this court finds is devoid of merit and is hereby dismissed with no orders as to costs. 62.Directions on the main petition to follow. DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI THIS 24TH DAY OF JUNE, 2026R.E. ABURILIJUDGE