[2025] KEHC 3797 (KLR)

Omuya v Inspector General of Police & 3 others; Wanjiru (Interested Party) (Criminal Petition E003 of 2025) [2025] KEHC 3797 (KLR) (27 March 2025) (Ruling)

Neutral citation: [2025] KEHC 3797 (KLR)

Republic of Kenya

In the High Court at Kibera

Criminal Petition E003 of 2025

DR Kavedza, J

March 27, 2025

Between

Daniel Faustine Omuya

Petitioner

and

Inspector General of Police

1st Respondent

Directorate of Criminal Investigations

2nd Respondent

Director of Public Prosecutions

3rd Respondent

The Hon. Attorney General

4th Respondent

and

Njonge Peninah Wanjiru

Interested Party

Ruling

1. The Applicant filed the present application dated 18th March 2025, seeking conservatory orders restraining the 1st and 2nd Respondents, their officers, agents, or any persons acting on their behalf from arresting, detaining, pursuing, or interfering with the Applicant’s liberty concerning the allegations in the petition. Additionally, the Applicant seeks orders preventing the 3rd Respondent, its officers, servants, agents, or any persons acting on its behalf from instituting, charging, or prosecuting the Applicant based on the same allegations.

2. These orders are sought both pending the inter partes hearing and determination of this Application and pending the final determination of the Petition to safeguard the Applicant’s rights and prevent undue interference.

3. The application was served upon the respondents and the interested party and a return of service filed in court. Neither the Respondent nor the Interested party filed a response to the application. Mr. Mabeya, learned Counsel for the Applicant’ made oral submissions in support of the application.

4. The application is supported by an affidavit sworn by the Applicant on the same date. The Applicant avers that he and the Interested Party were in a personal relationship until November 2024, when it ended acrimoniously. In 2018, they jointly established multiple business ventures, including Thrive Medispa Limited on the 8th floor of Trance Tower, South B, Nairobi, and Thrive Aesthetic.

5. Following the deterioration of the business partnership, the Applicant lost access to all business social media accounts. Additionally, his personal WhatsApp account was accessed and subsequently blocked without his consent. Initially assuming a technical issue, the Applicant later discovered this was a deliberate act to exclude him from the businesses.

6. On 16th November 2024, while the Applicant attended a family event, the Interested Party entered the business premises accompanied by others, removed essential equipment, stock, and funds, and left the Applicant and employees stranded. This incident was reported to the building management and Mariguini Police Station.

7. Subsequently, the Interested Party attempted to recruit employees by offering higher salaries. Upon failing, she issued redundancy notices. It later emerged that she had planned her exit, secured new premises, rebranded, and terminated the lease, thereby forcing the Applicant to enter into a new lease agreement.

8. Following reports of threats, the Applicant made police reports at Industrial Area Police Station. The Interested Party also lodged false claims at multiple police stations in Nairobi to exert pressure on the Applicant.

9. On 22nd March 2025, plainclothes officers from Dandora Police Station forcefully arrested the Applicant without a warrant. Investigations established that the dispute was civil rather than criminal. Nonetheless, the Interested Party continued to misuse law enforcement to harass the Applicant.

10. The Applicant fears for his safety and seeks justice, accountability, and protection from further interference. He contends that unless the application is granted, the Respondents will persist in their abuse of power by instituting false criminal charges against him. This would constitute a misuse of the criminal justice system, waste judicial resources, and undermine the integrity of legal proceedings, as such charges would be baseless from the outset.

11. In dealing with an application of this nature, it is the constitutional duty of this court to go to the lengths and breadths of the constitution to protect the rights and fundamental freedoms where need be, but, it should be alive to its obligation not to curtail the other organs of state from carrying out their constitutional mandate. It is a very delicate balance of competing rights that this court is expected to carry out.

12. The applicant before this court is seeking conservatory orders pending hearing and determination of the application and petition on record. He has averred that he faces intimidation and harassment from the interested party who is using the criminal justice system unlawfully. He is apprehensive that he may be prosecuted on a matter arising from false criminal charges.

13. The court has jurisdiction over this matter as the dispute originated in South B, which falls within its territorial jurisdiction. Given that the events in question transpired within this area, the court is duly empowered to hear and determine the case.

14. At this juncture, the duty of this court is not to interrogate whether the applicant’s apprehension is genuine but genuine but rather, to protect his constitutional rights and fundamental freedoms guaranteed to all persons. The Constitutionof Kenya, specifically Article 27, guarantees the right to equal protection and benefit of the law, ensuring that every person is equal before the law and has the right to equal protection and benefit of the law.

15. Moreover, Article 22(1) of the Constitution states that every person has the right to institute court proceedings claiming that a right or fundamental freedom in the Bill of Rights has been denied, violated, infringed, or threatened. The said article does not discriminate against parties seeking conservatory orders against those they are accusing of violating their rights.

16. Before issuance of such an order, the court must be convinced that the threat is real and not just mere apprehension. The applicant must demonstrate that unless the orders sought are granted by the court, his right to equal protection of the law will be infringed by the charges he is likely to face. At this stage, I am only supposed to be satisfied, which I am, that unless the orders sought are granted, the applicant’s right to equal protection of the law under the Constitution will be compromised.

17. Having considered the application, the supporting affidavit of the applicant, and the annexure thereto, I hereby order as follows:I.Conservatory orders are hereby issued restraining the 1st and 2nd Respondents by themselves, their officers, servants, agents or anyone acting on their behalf from arresting, detaining, pursuing, confining or in any other way interfering with the liberty of the Applicant/Petitioner in connection with the complaint giving rise to this Petition pending the hearing and determination of the Petition.II.Conservatory orders are hereby issued restraining the 3rd Respondent herein, its officers, servants, agents or anyone acting on its behalf from instituting, charging or prosecuting the Applicant/Petitioner in respect to the complaint giving rise to this Petition pending the hearing and determination of the Petition.III.The Applicant/Petitioner is directed to serve the respondents and interested party with the order of this Court.IV.The Petition shall be heard on 6th May 2025Orders accordingly.

RULING DATED AND DELIVERED VIRTUALLY THIS 27TH DAY OF MARCH 2025D. KAVEDZAJUDGEIn the presence of:Mabeya for the ApplicantRespondents absentInterested party absent.Tonny Court Assistant