https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9995

Osmail v Director of Public Prosecutions & another (Petition E091 of 2023) [2026] KEHC 9995 (KLR) (Constitutional and Human Rights) (9 July 2026) (Judgment) Neutral citation: [2026] KEHC 9995 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Law Courts) Constitutional and Human Rights Petition E091 of 2023 PM Nyaundi, J July 9, 2026 Between Abdinoor Maalm Osmail Petitioner and The Director Of Public Prosecutions 1st Respondent The Honourable Attorney General 2nd Respondent Judgment 1.The Amended Petition herein is dated 5th July 2023 and is premised on a sequence of events that are said to have begun on the night of 21st January 2019, when it is alleged that heavily armed officers of the National Police Service (1st Respondent) stormed the Petitioner’s residence without warrants, subjected him to physical assault, harassed his family members, seized his personal property, and arrested him without disclosing any reasons. Thereafter he was detained in contravention of the constitution first, he was not presented before a court to take a plea within 24 hours and subsequently his detention was extended in violation of constitutional timelines. The Petitioner contends that these actions constituted a sustained violation of his rights to dignity, liberty, privacy, equal protection of the law, and freedom from torture and cruel, inhuman or degrading treatment. 2.The Petitioner further avers that he was subsequently arraigned on 28th February 2019 in Criminal Case No. 373 of 2019, where he was charged with terrorism‑related offences allegedly arising from Mpesa till operations. The Petitioner avers that the charges were arbitrary, fabricated, and unsupported by any credible investigation, and that the Respondents acted in palpable ignorance of Mpesa agency operations. Despite repeated requests for review, the prosecution persisted for three years until 28th March 2022, when the trial court acquitted him under Section 210 of the Criminal Procedure Code, finding no evidence linking him to the offences. The Petitioner asserts that the prosecution was actuated by ulterior motives, public hysteria, and an abuse of prosecutorial power. 3.The Petition is anchored on the enforcement jurisdiction of the High Court under Articles 19, 21, 22, 23 and 165(3) of the Constitution. The Petitioner alleges violations of non‑derogable rights under Article 25(a), as well as rights under Articles 27, 28, 29, 31, 39, and 49. He further invokes Article 157(11), asserting that the Director of Public Prosecutions failed to prevent abuse of legal process, and Article 244(c) regarding the professional conduct of police officers. The Petition also relies on the principle of ubi jus ibi remedium, asserting that the unlawful deprivation of liberty and malicious prosecution entitle him to judicial redress. 4.The Petition details consequential harm arising from the Respondents’ actions, including reputational injury, psychological trauma, suspension of his company’s bank account, and his inclusion in the Refinitiv World‑Check database as a terrorism‑linked individual. The Petitioner avers that these collateral consequences flowed directly from the unlawful arrest, detention, and prosecution, causing severe financial hardship and social stigma. He quantifies his special damages at Kshs. 2,486,000, being legal fees, court attendance costs, and expenses incurred in obtaining certified proceedings. 5.The Petitioner therefore seeks a series of constitutional remedies, including declarations that the arrest, search, detention, seizure of property, access to his phone data, and prosecution were unconstitutional; declarations that the Respondents are liable for the reputational and financial harm suffered; an award of special damages, general damages, and exemplary or aggravated damages for oppressive and high‑handed conduct; costs of the Petition; and interest on the monetary awards. Summary Of The Respondents’ Response 6.In response, the respondents have sworn three affidavits, two are sworn on 19th February 2024 and 16 June 2025 by Cyrus Ikade (for the 1st and 3rd Respondents), and the third by the Prosecution Counsel, Kinuthia Njenga sworn on 16th June 2025 (for the 2nd Respondent). It is averred that the charges emanated from the 15 January 2019 Dusit D2 terrorist attack, which claimed twenty‑one lives. 7.Sgt. Ikade describes an expansive investigative response following the attack: over one hundred arrests, hundreds of mobile devices seized, and extensive forensic analysis. He states that the Petitioner’s electronic devices were lawfully examined and that his arrest was tied to intelligence linking his company, SEATECH Ltd., and its MPESA Till No. 369024, to suspicious cross‑border financial flows allegedly connected to South African remittance platforms and Somali networks. He asserts that the search of the Petitioner’s residence was conducted in accordance with police standing orders and without violation of rights. 8.Prosecution Counsel Kinuthia Njenga relies on the constitutional framework of Article 157, emphasizing the Director of Public Prosecutions’ duty to act independently, uphold public interest, and prevent abuse of legal process. He affirms that the Petitioner was presented to court within constitutional timelines, that the prosecution sought and obtained extensions of time to complete investigations, and that the Petitioner never raised complaints of rights violations during the criminal proceedings. He underscores that the DPP independently reviewed the evidence, found it sufficient under the evidential and public‑interest tests, and directed prosecution accordingly. 9.Both deponents recount that the Petitioner was charged in Criminal Case No. 373 of 2019, represented by counsel, and subjected to a full trial involving twenty‑one prosecution witnesses, after which the trial court found no case to answer. The DPP expresses dissatisfaction with that ruling and documents repeated, unsuccessful attempts to obtain certified proceedings from the Milimani Registry to pursue an appeal. The Respondents argue that the Petitioner’s constitutional petition merely lists rights without demonstrating specific violations or damages, and that any challenge to the sufficiency of evidence belongs before the appellate courts. 10.A notable discrepancy emerges in the affidavits regarding the date of arrest. In the affidavit of 16 June 2025, Sgt. Ikade states the Petitioner was arrested on 22 January 2019. In the affidavit he states the arrest occurred on 21 January 2019. Petitioner’s Rejoinder To The Respondents’ Response 11.The Petitioner has sworn two additional affidavits on 19th September 2024 and 10th September 2025. He challenges the respondent's narration on the date, place and manner of arrest. He asserts that the arrest was from his residence, violent, and unsupported by prior investigation, and that the prosecution’s allegations about Mpesa tills were without basis. His arrest and detention that were unconstitutional ab initio. He avers that the State cannot rely on vague “intelligence” or unexplained allegations to justify deprivation of liberty. 12.He asserts that the State arrested without evidence, detained without lawful basis, prosecuted without investigation, and persisted even after the trial court found “no iota of evidence” connecting him to any offence. 13.The Petition was canvassed via written submissions. Summary Of The Petitioner’s Submissions 14.In the submissions dated 26th May 2026, the Petitioner asserts that his arrest, detention, search, prosecution, and subsequent reputational harm were unlawful, arbitrary, and unsupported by evidence, and that the High Court must intervene to vindicate his rights under Articles 27, 28, 29, 31, 39, 49 and 157(11). He identifies five issues for determination-i.Whether the Petition is properly before the Court, arguing that it is and urges that it meets the requirements as set out in rule 10 of the ‘Mutunga Rules’ as enunciated in Anarita Karimi Njeru [1979] KLR and reaffirmed in Mumo Matemu v Trusted Society of Human Rights & 5 Others [2013] eKLR, ANM &Another (suing in their own behalf and on behalf of ANM (Minor) as parents and next friend) v FPA & Another [2019] eKLR and Samuel Tunoi v Speaker Nakuru County Assembly & 2 Others [2019] eKLRii.Whether the Petition is collateral attack or re-litigation of the criminal trial of the Petitioner. It is submitted that the Petition is competently before the Court and reference made to the decision in Virnemas Mwanaharusi v Boniface Kahindi Katana & 2 Others [2019] KEELC 931 (KLR)iii.Whether the Petitioner has proved his case to the required standard? He submits that he has met the standard which is on balance of probabilities and relies on the decision in Kenya National Commission on Human Rights v Attorney General & 3 Others [2014] eKLR. He maintains that the affidavits of the Respondents should be struck out us they are based on hearsay evidence. He relies on the decision in Republic v Otieno Kajwang & Anor Ex Parte Mohamud Muhumed Sirat [2009] eKLR. On the violation of his right to privacy occasioned by the raid on his house, he relies on the decision in Walter Schmitt & Another v Attorney General & 3 Others [2014] eKLR and Abubakar Shariff Abubakar v Attorney General & Anor [2014] KEHC 620 (KLR). Reference is made to the decision in Joseph Njuguna Njoroge v Attorney General & 2 Others [2014] eKLR on his right not to be subjected to violence and to the decision in Titus Barasa Makhanu v Police Constable Simon Kinuthia Gitau No. 83653 & 3 Others [2016] eKLRHe relies on the decision in Zealnd v Minister for Justice and Constitutional Development & Anor (CCT 54/07) [2008] ZACC 3 and JE Mahlangu & Another v Minister of Police (CCT 88/20) for the assertion that the respondents did not disprove his charge that his detention was unlawful. Reference is made to the decision in Lucas Omoto Wamari v Attorney General & Anor [2017] eKLR and Republic v Director of CID & Another Ex Parte Ronald Morara Ngisa [2018] eKLR for the assertion that he is entitled to a remedy for being put through a prosecution without reasonable cause or basis.Further it is submitted on the authority of Jaston Ongule Onyango v Attorney General & Another [2015] eKLR that the court is vested with the mandate to adjudicate on the claim for malicious prosecution and reference is made to the decision in Chitembwe v Ethics and Anti-Corruption Commission & Another [2024] KEHC 11192 (KLR) and Emmanuel Kuria Wa Gathoni v Commissioner of Police & Another [2017] eKLR on the principles that would guide a Court on establishing that a prosecution was malicious and resulted in violation of the rights of a Petitioner. The Petitioner further alleges that the confiscation of his passport occasioned a violation of his right to freedom of movement. Further he contends that he suffered reputational harm as a consequence to his listing on Refinitive World- Check Risk Intelligenceiv.On damages, reference is made to the decisions in Lucas Wamari & Another (Supra); Imanyara & 2others v Attorney General [2022] KESC 78 KLR, Wamwere & 5 Others v Attorney General [2023] KESC 2 (KLR) alongside other decisions cited for the normative basis for award of damages and elements to be considered in awarding the appropriate quantum of damages. Summary Of The Submissions Of The 2Nd Respondent 15.The 1st and 2nd Respondents submissions are dated 9th June 2026. They submit that the Amended Petition fails the constitutional precision requirement. They rely on Anarita Karimi Njeru v Republic (1979) KLR 154 and Mumo Matemu v Trusted Society of Human Rights Alliance & 5 Others [2014] KESC 32 (KLR) to assert that a petitioner must plead with clarity the provisions violated and the manner of violation. They contend that although the Petitioner cites many constitutional articles, he provides no evidence proving any violation, and has not demonstrated discrimination or unequal treatment under Article 27. They therefore submit that the petition is imprecise, unsupported by evidence, and falls short of the constitutional threshold. 16.The respondents identify five issues for determination. Whether the Petition meets the Constitutional precision threshold; Whether the arrest, search and investigations complained of were lawful; whether the detention complained of violated Article 49 of the Constitution; Whether the Petitioner has established violation of Article 27, 28, 29, 39 and 49 of the Constitution; Whether the prosecution of the Petitioner amounted to malicious prosecution or abuse of power; whether the acquittal under Section 210 of the Criminal Procedure Code establishes constitutional violations; Whether the Petitioner has proved entitlement to declarations, damages and other remedies sought 17.It is submitted that in arresting the Petitioner, the police acted within their constitutional and statutory mandate under Article 245 and the National Police Service Act, and that reasonable suspicion existed due to financial links identified during the Dusit D2 terrorism investigation. They cite Republic v Commissioner of Police & Another ex parte Michael Monari & Another [2012] eKLR to emphasize that police need only reasonable suspicion, not evidence sufficient for conviction. Regarding the search, they rely on Samson Mumo Mutinda v Inspector General National Police Service & 4 others (2014) eKLR to argue that warrantless searches are permissible in certain investigative circumstances. On forensic access to devices, they cite Republic v Ali & 2 others [2024] KEHC 10969 (KLR), where the High Court upheld warrantless extraction of electronic evidence during urgent terrorism investigations, finding that privacy rights under Article 31 may be limited in national security contexts. 18.In addition, the respondents submit that the allegations of assault have not been proved, noting the absence of medical evidence such as P3 forms or treatment notes. On detention, they emphasize that custodial orders were issued by the Chief Magistrate’s Court in Misc. Criminal Application No. 292 of 2019, and that the Petitioner never challenged those orders at the time. They argue that judicially sanctioned detention cannot be attacked collaterally through a constitutional petition, relying on Harrikisson v Attorney General of Trinidad and Tobago [1980] AC 265 for the principle that constitutional petitions cannot substitute for appeals or reviews. They further note that the Petitioner never raised complaints of torture, unlawful search, or rights violations during the criminal proceedings, despite being represented by counsel throughout at the trial. 19.On malicious prosecution, the Respondents rely on Kenya Power and Lighting Company Limited v Odhiambo & another [2025] KEHC 16513 (KLR), Mbowa v East Mengo District Administration (1972) EA 352, George Masinde Murunga v Attorney General [1979] eKLR, and Stephen Gachau Githaiga & Another v Attorney General [2015] eKLR to outline the elements of malicious prosecution. They argue that investigations were intelligence‑led, arising from a major terrorist attack, and that financial transactions linked to SEATECH Ltd constituted reasonable and probable cause. They cite James Kiiru v Joseph Mwamburi & 2 Others [2001] eKLR to emphasize that acquittal does not prove malice, and Kagane & Others v Attorney General [1969] EA 643 and Cheboi & 3 others v Kangogo [2025] KEHC 14175 (KLR) to argue that malice requires proof of spite or improper motive, which the Petitioner has not shown. On prosecutorial independence, they rely on Director of Public Prosecutions v Martin Maina & 4 Others [2017] KECA 93 (KLR) to assert that the DPP acted within Article 157 and applied the evidential and public interest tests before charging. 20.Finally, the Respondents submit that constitutional damages require proof of actual violation, citing Gitobu Imanyara & 2 Others v Attorney General [2016] KECA 557 (KLR). They contend that the Petitioner has not proved special damages or any constitutional breach warranting compensation. Regarding the Refinitiv World‑Check listing, they argue that the Petitioner has not shown which Respondent supplied information, when it was supplied, or any causal link. Summary Of The Submissions Of The 1St And 3Rd Respondents 21.The submissions of the 1st and 3rd respondent are dated 11th May 2026. It is submitted that the Petitioner’s arrest, search, detention and prosecution were undertaken within lawful investigative and national security mandates, and pursuant to judicially sanctioned custodial orders in Misc. Criminal Application No. 292 of 2019. They emphasize that the Petitioner was charged in Criminal Case No. 373 of 2019 based on intelligence, financial tracing and communication analysis, and that the petition merely repackages grievances already canvassed before the trial court. 22.The Respondents submit that the petition fails the precision requirement established in Anarita Karimi Njeru v Republic [1979] eKLR and reaffirmed in Mumo Matemu v Trusted Society of Human Rights Alliance [2013] eKLR. They rely further on Japheth Ododa Origa v Vice Chancellor University of Nairobi & 2 others [2018] KEHC 4861 (KLR) and the Supreme Court’s guidance in Communication Commission of Kenya & 5 others v Royal Media Services Limited & 5 others [2014] eKLR, arguing that the Petitioner’s pleadings consist of generalized allegations lacking specificity, nexus, or evidentiary foundation. They contend that the petition does not demonstrate how the Respondents acted outside their constitutional mandate, nor does it establish any unconstitutional conduct. 23.In addition, the respondents submit that the Petitioner’s arrest was grounded on reasonable suspicion arising from intelligence reports. They cite Monari & another v Commissioner of Police & another; Abubakar & another (Interested Parties) [2012] KEHC 4595 (KLR) and Asif v Director of Public Prosecutions & 2 others (Constitutional Petition E054 of 2023) [2025] KEHC 5242 (KLR) to emphasize that investigators need only reasonable suspicion, not proof beyond reasonable doubt, at the pre‑trial stage. They further rely on Isaac Tumunu Njunge v Director of Public Prosecutions & 2 others [2016] eKLR to underscore the police mandate to investigate crime. On detention, they argue that all custodial periods were sanctioned by court orders, and that the Petitioner participated fully through counsel. They cite Meixner & another v Attorney General [2005] KECA 292 (KLR) to assert that constitutional petitions cannot be used to re‑litigate evidentiary or procedural matters already determined by the trial court. 24.Further, the Respondents submit that the Petitioner has not met the four‑part test for malicious prosecution as set out in John Ndeto Kyalo v Kenya Tea Development Authority & another [2005] KEHC 1489 (KLR) and reaffirmed in Mosigani v Khisa & another (Civil Appeal 001 of 2020) [2025] KEHC 1677 (KLR). They argue that investigations were intelligence‑led, arising from a major terrorist attack, and therefore grounded in reasonable and probable cause. They rely on James Kahindi Simba v Director of Public Prosecution & 2 others [2020] KEHC 5684 (KLR) and James Karuga Kiiru v Joseph Mwamburi & 3 others to emphasize that acquittal does not imply malice. They further cite Mbowa v East Mengo District Administration (1972) EA 352 and Muinga v Attorney General 1979 KLR 138 to argue that all four elements must “unite” to establish malicious prosecution, which the Petitioner has not demonstrated. They maintain that no evidence of spite, ill‑will, improper motive or abuse of office has been tendered. 25.Finally, the Respondents argue that the Petitioner has not proved any constitutional violation warranting declaratory or compensatory relief under Article 23(3). They rely on Ntayia & another v Ntayia (Constitutional Petition E331 of 2024) [2026] KEHC 1351 (KLR) and Gitobu Imanyara & 2 Others v Attorney General [2016] eKLR to assert that constitutional damages are discretionary and only available upon proof of actual violation. They further cite Ali v Mohammed & 3 others [2022] KEHC 13769 (KLR) to emphasise that constitutional damages are meant to vindicate rights, not punish the State or enrich claimants. They argue that the Petitioner’s grievances were fully ventilated before the criminal court, that the Respondents acted within their constitutional and statutory mandates, and that the petition improperly seeks to transform ordinary criminal processes into constitutional violations. They therefore urge dismissal of the petition in its entirety. Analysis And Determination 26.Having reviewed the pleadings and submissions filed, I discern the following as the constitutional issues for determinationi.Does the Petition as framed meet the precision test as pronounced in the Anarita Karimi Njeru case?ii.If the answer to (i) above is in the affirmative, did the 1st respondent violate the rights of the Petitioner?iii.Whether the 2nd Respondent acted in contravention of Article 157 (11) in deciding to charge and prosecute the Petitioner?iv.Arising from (i), (ii) and(iii) what are the consequential orders? Whether the Petition as framed meets the precision test as pronounced in the Anarita Karimi Njeru case 27.The test articulated in the celebrated Anarita Karimi Njeru (Supra) decision finds statutory expression in Rule 10 of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013. That Rule operationalises the precision principle by requiring a petitioner to set out, with clarity and specificity, the facts relied upon, the constitutional provisions alleged to have been infringed, the nature of the injury suffered or threatened, and the relief sought. Rule 10 therefore serves as the procedural anchor for the constitutional discipline envisioned in Anarita Karimi Njeru case, as it ensures that claims of constitutional violation are not presented in broad strokes or generalities, but in a manner that enables the Court and the respondent to discern both the alleged breach and the legal foundation upon which the petitioner seeks redress. 28.The Court of Appeal reaffirmed this principle in Matemu v Trusted Society of Human Rights Alliance & 5 Others [2013] KECA 445 (KLR), emphasising that although a party may, in limited circumstances, be excused for imperfect drafting, the obligation to plead constitutional claims with precision remains immutable. Precision, the Court observed, is not merely a technical preference; it is a foundational requirement that ensures constitutional litigation proceeds on a clear, intelligible, and legally coherent record. 29.I have considered the Petition in light of the legislative and judicial requirements for a properly drafted constitutional petition. I am satisfied that the Petitioner has, with appreciable clarity, identified the specific rights alleged to have been violated, the entity said to have caused the violation, and the manner in which the violation is alleged to have occurred. I therefore find that the Petition, as framed, meets the requisite threshold of competence and is fit to proceed to determination on its merits. Did the 1st respondent violate the rights of the Petitioner? 30.The mandate of the 1st Respondent to investigate offences and effect arrests is anchored in Article 245(4)(a) of the Constitution and further elaborated in Sections 24 and 35 of the National Police Service Act. Our jurisprudence makes clear that, in carrying out these functions, the Inspector‑General operates with constitutionally protected independence. For that reason, courts must exercise considerable restraint before intruding upon or second‑guessing the manner in which the Inspector‑General discharges those statutory and constitutional responsibilities. 31.In Republic v Inspector General of Police & 2 Others; Njenga (Exparte); Premium Movers Limited & 2 Others (Interested Party) [2022] KEHC 604 (KLR), Mativo J (as he then was) expressed it as follows-(24)Undisputedly, the police are an important cog in the security sector. The functions of the National Police Service enumerated in section 24 of the National Police Service Act include (e) investigation of crimes;(g) prevention and detection of crime;(h) apprehension of offenders;(i)enforcement of all laws and regulations with which it is charged; and (j) performance of any other duties that may be prescribed by the Inspector-General under this Act or any other written law from time to time.[25].Section 35 of the National Police Service Act provides the functions of the 3rd Respondent include: undertaking investigations on serious crimes including homicide, narcotic crimes, human trafficking, money laundering, terrorism, economic crimes, piracy, organized crime, and cybercrime among others; maintaining law and order; detecting and preventing crime; apprehending offenders; and performing any other function conferred on it by any other written law.[26].Clearly, the police are legally obligated, once they witness or are informed of a crime, to investigate the offence. The objects of the police service are to prevent, combat and investigate crime, to maintain public order, to protect and secure the inhabitants of the Republic and their property, and to uphold and enforce the law. These obligations arise from the Constitution and are affirmed by the National Police Service Act. The functions of the police is to investigate crimes. Any other answer would give rise to indignation.[27].In order to carry out the above functions, the police have certain powers, namely the power to summon, arrest and detain and the power to use reasonable force. It is precisely this monopoly of power which places the police in a unique and sensitive position such that adequate control mechanisms are required to ensure that these powers are consistently used in the public interest. Like any other public service the Police must operate with impartiality. 32.Article 244 of the Constitution provides the guardrails within which the Inspector General exercises this mandate requiring that National Police Service shall-i.Strive for the highest standards of professionalism and discipline among its members;ii.Prevent corruption and promote and practice transparency and accountabilityiii.Comply with the constitutional safeguards of human rights and fundamental freedomsiv.Train staff to the highest possible standards of competence and integrity and to respect human rights and fundamental freedoms and dignity, andv.Foster and promote relationships with the broader society. 33.The actions of the Inspector General and his agents will withstand judicial scrutiny only if they are in accordance with Article 244 of the Constitution. The Petitioner herein alleges that the actions of the agents of the 1st Petitioner at his arrest and leading to his arraignment in Court violated his rights. In particular, the Petitioner submits that the officers who conducted his arrest violated his rights by assaulting him and using excessive force against him and members of his family. They searched his home without a warrant, in violation of his rights. They confiscated his passport. They then detained him for more than 24 hours before presenting him to Court. As a consequence of these actions, his rights under Articles 28, 29 and 31 of the Constitution were violated. 34.In Odongo v Attorney General [2026] KEHC 556 (KLR), the court underscored that ‘a Constitutional Petition must meet the threshold of specificity and further, the allegations put forth must also be established by evidence’. This was exhaustively discussed by Mrima J in Matendechele v Sunstar Hotel Nairobi [2023] KEHC 1921 (KLR)as hereunder-(29)The issue of the burden of proof has two facets. There are the legal burden of proof and the evidential burden of proof.[30].Sections 107(1), (2) and 109 of the Evidence Act, Cap. 80 of the Laws of Kenya deals with the burden of proof. It states as under: -Sections 107(1) and (2): 1.Whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist. 2.When a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person.andSection 109:Proof of particular factThe burden of proof as to any particular fact lies on the person who wishes the Court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person. [31].The foregoing provision brings out what is referred to as the legal burden of proof. That burden remains on the Petitioner throughout the case.[32].Reinforcing that the legal burden of proof in constitutional Petitions is on the Petitioners, the Supreme Court in Communications Commission of Kenya & 5 Others vs. Royal Media Services Limited & 5 Others [2014] eKLR stated as follows: -Although Article 22(1) of the Constitution gives every person the right to initiate proceedings claiming that a fundamental right or freedom has been denied, violated or infringed or threatened, a party invoking this Article has to show the rights said to be infringed, as well as the basis of his or her grievance. This principle emerges clearly from the High Court decision in Anarita Karimi Njeru vs. Republic, (1979) KLR 154: the necessity of a link between the aggrieved party, the provisions of the Constitution alleged to have been contravened, and the manifestation of contravention or infringement. Such principle plays a positive role, as a foundation of conviction and good faith, in engaging the constitutional process of dispute settlement.[33].There is also the evidential burden of proof. This legal principle was discussed in Bungoma High Court Election Petition No. 2 of 2017 Suleiman Kasuti Murunga vs. IEBC & 2 Others (2018) eKLR as under: -[26].The Petitioner on whom the legal burden of proof lies may or may not adduce sufficient and admissible evidence in proof of any of the allegations in the Petition. On one hand, if no sufficient evidence is adduced to the required standard, then the allegation(s) fail and it all ends there. On the other hand, if evidence is adduced to the satisfaction of the Court that an election ought to be impugned, then it becomes the burden of the Respondent(s) to adduce evidence rebutting the allegations and to demonstrate that the law was complied with and/or that the irregularities did not affect the result of the election. At that point the burden is said to shift to the Respondents. That is the evidential burden of proof.[27].The principle of ‘evidential burden of proof’ is hence anchored on the rebuttable presumption of validity of election results. That, until and unless a Petitioner discharges the evidential burden of proof an election is presumed valid. It is on that background that the Court in Singh vs. Mota Singh & Another (2008) 1 KLR 1stated that an election is a matter of public importance not to be lightly set-aside and in the case of Jeet Mohinder Singh vs. Harminder Singh Jassi, AIR 2000 SC 258the Supreme Court of India stated that ‘the success of a candidate who has won at an election should not be lightly interfered with…Any person seeking such interference must strictly conform to the requirements of the law….’. 35.The pertinent question, therefore, is whether the Petitioner has discharged the burden as required by law. It is my finding that his assertions as to the manner of his arrest, alleging that he was physically assaulted and his family members were harmed is not supported by evidence either in the form of medical reports, witness present during the occurrence or an inventory of the items illegally taken. 36.It is not in dispute that the Petitioner’s arrest arose in the aftermath of the terrorist attack at the Dusit Hotel. The 1st Respondent asserts that intelligence gathered during that period warranted an investigation into the Petitioner. The Petitioner maintains that he was arrested on 21 January 2019, while the Respondents contend that the arrest occurred on 22 January 2019, rendering his arraignment on 23 January 2019 compliant with constitutional timelines. I have reviewed the ruling delivered by the Trial Magistrate on 4 February 2019, which expressly found that the arrest took place on 22 January 2019. That judicial finding resolves the dispute. And on that basis, the Petitioner’s claim that he was detained for more than twenty‑four hours before being presented to court cannot be sustained. 37.It is well established that the 1st Respondent requires only reasonable suspicion to lawfully initiate an investigation. That threshold is intentionally modest; it reflects the practical realities of policing while preserving the constitutional guardrails that prevent arbitrary state action. Our courts have repeatedly affirmed this balance. In Republic vs. Commissioner of Police and Another ex parte Michael Monari & Another [2012] eKLR, the High Court underscored that investigators may act on reasonable suspicion and that judicial interference is unwarranted unless the power is exercised in bad faith or for an ulterior purpose. I am persuaded that the circumstances presented here fall squarely within the boundaries our jurisprudence has set for situations in which investigators may proceed without a warrant. Where exigency, credible intelligence, or immediate security concerns are present, the law affords the police latitude to move swiftly, so long as their actions remain tethered to constitutional and statutory constraints. (see Samson Mumo Mutinda v Inspector General National Police Service & 4 others (2014) eKLR and Republic v Ali & 2 others [2024] KEHC 10969 (KLR)). In the circumstances, I do not find that the actions of the 1st respondent occasioned a violation of the rights of the Petitioner. Did the 2nd Respondent act in contravention of Article 157 (11) in deciding to charge and prosecute the Petitioner? 38.The Office of the Director of Public Prosecutions is established under Article 157(1) of the Constitution, its powers defined in Article 157(6), and its institutional independence firmly entrenched in Article 157(10). While the discretion vested in the ODPP is broad, and even as our courts have described it as “unfettered”, it is not unaccountable (See Peter Ngungiri Maina v Director of Public Prosecutions & 2 others [2017] eKLR). In Lalji & another v Attorney General & 4 others [2018] KECA 856 (KLR), the Court of Appeal made clear that prosecutorial discretion must be exercised in a manner consistent with the Constitution, and that courts may intervene where that discretion is deployed in bad faith, for an improper purpose, or in a manner that results in the violation of rights. The constitutional insulation of the ODPP therefore protects principled decision‑making, not impunity or dereliction of responsibility, to ensure that before a decision to charge is made there is in fact a prosecutable case. 39.The Petitioner seeks a declaration that his charging, arraigning and prosecution in Nairobi Chief Magistrate’s Court Criminal Case No. 373 of 2019 by the 2nd Respondent ‘when the 2nd respondent knew or ought to have known that the prosecution was not supported by any modicum of credible investigation or an iota of evidence, the prosecution was a mock or show trial for ulterior purpose other than to vindicate the criminal justice, was an abuse of power of the 2nd respondent and process of court in violation of Article 157 (11) of the Constitution and the same amounted to an actionable malicious prosecution’. 40.In making this assertion, the Petitioner relies on the Magistrate’s analysis of the evidence of the key prosecution witnesses (specifically PW7 and PW21) as found from paragraph 10 to 25 of the Ruling of the Court delivered on 28th March 2022, in acquitting him under Section 210 of the Criminal Procedure Code, The Court found as follows-(22)PW21 Cyrus Ikade was the investigating officer…In his testimony, the 2nd and 3rd accused persons were linked to this case through intelligence.(23)Upon cross examination on the purpose of intelligence reports and how relevant or useful it is to investigation he stated that intelligence reports are used to follow leads on investigations and any evidence gathered is brought to court through testimonies by witnesses and exhibits they produce.[24]in respect of the 2nd and 3rd accused persons, PW21 stated that there was no relevant outcome of the investigations out of the intelligence report touching on the 2nd and 3rd accused persons and as such he did not investigate the leads out of the intelligence report any further.[25].Ultimately, in the final analysis, I find and hold as follows:I.There was no proof as to who was allocated the till number;II.There was no proof as to who was the registered operators of the till numbers;III.There was no proof that the till numbers were engaged in any suspicious financial transactions and/ or dealing;IV.There was no proof that the numbers were reported to the Financial Reporting Centre having questionable transactions andV.More importantly, there was no proof that Kshs 19,748,724was received and/or transmitted through any of the till numbers. 41.The material placed before this Court, the ruling of the Court acquitting the Petitioner and the letter dated 1 March 2019 authored by Counsel for the Petitioner, raises a legitimate question as to whether the Office of the Director of Public Prosecutions discharged its constitutional mandate in accordance with Article 157(11). The Constitution draws a clear line between the role of the investigator and that of the prosecutor. The investigator gathers evidence; the prosecutor evaluates that evidence through an independent constitutional lens to determine whether it discloses a prosecutable offence. 42.That independence is not ornamental; it is a structural safeguard designed to ensure that prosecutorial power is exercised with fidelity to the administration of justice and with vigilance against abuse of legal process. And where as in this case the record reveals that the charges may have been initiated without a factual basis, the Court is obligated to examine whether the ODPP’s discretion was exercised in a manner consistent with Article 157(11). 43.Even though the ODPP need not demonstrate that there was a foolproof case in charging, he must at the minimum demonstrate an honest and reasonable belief based on credible evidence that an offence has been committed and that the suspect is probably responsible. A criminal prosecution that is commenced in the absence of a proper factual foundation or basis is always suspect for ulterior motive or improper purpose. The Constitutional question is not whether the ODPP was sure of a conviction but whether there existed a proper factual foundation for invoking the criminal process. 44.The Petitioner was charged with the offence of Financial promotion of an offence contrary to Section 7 as read with Section 16(1) of Proceeds of Crime and Anti Money Laundering Act-On or before the 15th January 2019, an unknown place within the Republic of Kenya, jointly with others not before Court, being the Mobile Transfer Service (MPESA) Till Operator of till Number 369024 allocated to SEATECH LTD by Safaricom (K) Limited knowingly received and transmitted Kshs 19,478, to an unidentified person with an intention to commit a terrorist act at the DUSIT D2 Hotel Complex on the 15th and 16th January 2024. 45.The judgment reveals that these charges were preferred against the Petitioner absent supporting evidence. For this reason, I find that, in exercising its discretion, the Office of the Director of Public Prosecutions acted in a manner inconsistent with Article 157(11) of the Constitution and, in this instance, failed in its duty to prevent and avoid the abuse of the legal process. The Petitioner has not met the threshold for establishing malice in the prosecutorial decision; however, he has demonstrated something more fundamental: a failure by the ODPP to ensure that a prosecution is grounded in a factual foundation capable of sustaining criminal charges. By proceeding in the absence of such a foundation, the ODPP violated the Petitioner’s right to equal protection and equal benefit of the law. The constitutional design entrusts the ODPP with a solemn responsibility: to ensure that the criminal justice system is deployed only where evidence, not conjecture, justifies the invocation of the State’s coercive power 46.As a result of that prosecutorial misstep, the Petitioner was detained in custody and subjected to a criminal trial that spanned three years. The collateral consequences were no less severe. His bank suspended his account. His admission to the Roll of Advocates was delayed. He was listed on the Refinitiv World‑Check Risk Intelligence database as a person associated with terrorism and with a terrorist organization. And even now, after his acquittal, he lives under the continuing threat that the 2nd Respondent may exercise its right of appeal. These are not abstract injuries. They are the tangible, enduring burdens that flow from a prosecution initiated without the evidentiary foundation the Constitution requires. 47.The Petitioner seeks damages for the extended detention and relies on the South African Case in JE Mahlangu (Supra). In distinguishing that decision from the current one, I note that the Petitioner therein did not apply for bail at the trial, the police had extracted a confession through torture. In the case before me, it is the Court which ruled on the continued detention of the Petitioner; I will not therefore find the 2nd respondent to have violated the Petitioner’s right to freedom and security of the person under Article 29. 48.On special damages, the Petitioner submits the following receipts in support his claim for refund of the sums he paid for legal fees-i.Receipt dated 2nd April 2019 for Kshs 400000 Legal feesii.Receipt dated 28th February 2019 for Kshs 750, 000 Legal feesiii.Receipt dated 28th June 2019 for Kshs 750, 000 Legal FeesTotal Kshs 1,900,000I disallowed the receipt dated 19th March 2019 for Kshs 550000 because it does not indicate what the payment was for. 49.On general damages having regard to the authorities cited by the parties and mindful of the principle that damages awarded in constitutional litigation are not merely compensatory; rather, they are declaratory of the constitutional order itself. They vindicate the right infringed, they deter future violations, and they reinforce the foundational principle that every person, regardless of circumstance, is entitled to equal protection and equal benefit of the law. In the circumstances of this case, I find that an award of General damages in the sum of Kshs 5 million payable by the 2nd Respondent would serve that purpose. 50.The Petition therefore succeeds with the following Orders- 51.A declaration hereby issues that the prosecution of the Petitioner in Nairobi Chief Magistrate’s Court Criminal Case No. 373 of 2019 (Republic v Unknown alias Hassan Abdi Nur & 2 Others) by the 2nd Respondent contravened Article 157(11) as the 2nd Respondent failed to prevent and protect against the abuse of Court process and thereby occasioned a violation of the Petitioner’s right to equal protection and equal benefit of the law as guaranteed under Article 27 of the Constitution. 52.The Petition is awarded Special damages in the Sum of Kshs 1,900,000 payable by the 2nd defendant 53.General damages of Kshs 5 million for violation of his rights under Article 27 of the Constitution payable by the 2nd respondent 54.The 2nd Respondent will also meet the Costs of the Petition SIGNED, DATED AND DELIVERED VIRTUALLY AT NAIROBI THIS 9TH DAY OF JULY, 2026.P.M. NYAUNDIJUDGEIn the Presence ofFardosa Court AssistantMs. Kinyua holding brief Mbugua Mureithi for PetitionersMaatwa holding brief Ondimu for DPPKhadija Taib for Marwa for 3rd Respondent