https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10806

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT SIAYA** **CONSTITUTIONAL AND HUMAN RIGHTS DIVISION** **PETITION NO. E017 OF 2025** **IN THE MATTER OF ALLEGED CONTRAVENTION OF FUNDAMENTAL RIGHTS AND FREEDOM UNDER ARTICLES 2, 3(1), 10,19,20,22,23,25(C), 47,48,49, 50(1), 157& 159 OF THE CONSTITUTION OF KENYA** **AND** **IN THE MATTER OF FAIR ADMINISTRATIVE ACTIONS ACT, 2015 OF THE LAWS OF KENYA** **AND** **IN THE MATTER OF THE OFFICE OF THE DIRECTOR OF PUBLIC PROSECUTIONS ACT AND THE GUIDELINES ON THE DECISION TO CHARGE 2019** **AND** **THE CONSTITUTION OF KENYA (PROTECTION OF RIGHTS AND FUNDAMENTAL FREEDOMS) PRACTISE AND PROCEDURE RULES)** **BETWEEN** **FREDRICK ODUOR OTIENO…………………..............1ST PETITIONER** **FREDRICK ODUOR OMUNDA...................................2ND PETITIONER** **LAKE AGRO LIMITED (suing on its own behalf and on behalf of its employees) ...................,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,3RD PETITIONER** **AND** **THE DIRECTOR OF PUBLIC PROSECUTIONS............1ST RESPONDENT** **THE NATIONAL POLICE SERVICE.............................2ND RESPONDENT** **THE INSPECTOR-GENERAL OF THE NATIONAL POLICE SERVICE.** **………………………………………………………….3RD RESPONDENT** **THE (PRINCIPAL) MAGISTRATE’S COURT AT SIAYA.....................................................................4TH RESPONDENT** **AND** **KENNEDY OUMA OPONDO........................1ST INTERESTED PARTY** **WILSON OMONDI OLAMBO......................2ND INTERESTED PARTY** **JUDGEMENT** 1. Before this Court is a Constitutional Petition dated 18th November 2025 brought by the Petitioners seeking a raft of declaratory orders as follows: 2. A declaration that the directive by the 1st Respondent dated 1st September 2025 to charge the employees of the 3rd Petitioner including the 1st Petitioner with the offence of Assault Causing Actual Bodily Harm is illegal, unlawful, unconstitutional and null and void ab initio. 3. A declaration that the charging of the 3rd Petitioner’ employees in Siaya PMCR Case No. E419 of 2025 - Republic vs Fredrick Oduor Omunda and Siaya PMCR Case No. E420 of 2025 - Republic vs Fredrick Otieno Oduor without proper investigations being carried out or without evidence sufficient to justify prosecution, is illegal, unlawful, unconstitutional and null and void ab initio. 4. An order of CERTIORARI to remove into the High Court and quash the 1st Respondent’s charges against the 1st and 2nd Petitioners before the 4th Respondent in Siaya PMCR Case No. E419 of 2025 - Republic vs Fredrick Oduor Omunda and Siaya PMCR Case No. E420 of 2025 - Republic vs Fredrick Otieno Oduor. 5. An order of PROHIBITION directed at the 1st Respondent, its officers and any other persons acting on the 1st Respondent instructions and/or authority from prosecution or proceedings with the prosecution of the 1st and 2nd Petitioners in Siaya PMCR Case No. E419 of 2025 - Republic vs Fredrick Oduor Omunda and Siaya PMCR Case No. E420 of 2025 - Republic vs Fredrick Otieno Oduor. 6. An order of PROHIBITION directed at the 4th Respondent prohibiting the 4th Respondent from hearing, proceeding with, determining or in any other manner entertaining Siaya PMCR Case No. E419 of 2025 - Republic vs Fredrick Oduor Omunda and Siaya PMCR Case No. E420 of 2025 - Republic vs Fredrick Otieno Oduor. 7. An order of CERTIORARI to remove into the High Court and quash the 1st Respondent’s directive to arrest, arraign and/or charge the 3rd Petitioner’s employees including the 1st Petitioner, in relation to the incidents subject of this Petition. 8. An order of PROHIBITION prohibiting the Respondents, whether acting by themselves or through their agents, servants or any other persons acting under their instructions or authority, from arresting, arraigning, detaining, holding, charging, or prosecuting any of the 3rd Petitioner’s employees including the 1st Petitioner for the alleged offences arising from the riot incident on 27th - 29th August 2025 or any related or consequential matter. 9. Damages for the violation of the Petitioners’ constitutional rights. 10. Any other orders or reliefs that this Honourable Court may deem fair, just, necessary and appropriate in the circumstances to protect the 1st and 2nd Petitioners’ rights, the 3rd Petitioner’s employees and the integrity of the 3rd Petitioner’s business operations. 11. The costs of this Petition. 12. The Petition is supported by a supporting affidavit of Moses Apunda, the General Manager of the 3rd Petitioner, sworn on 18th November 2025 wherein he averred inter alia; that the 3rd Petitioner, lake Agro limited is a registered commercial entity operating in Siaya County employing numerous local residents including the 1st Petitioner (a driver) and the 2nd Petitioner (a security guard); the Petitioners aver that Between the 27th and 29th of August 2025, politically instigated riots occurred within the premises of the 3rd Petitioner at Kadenge Sub-location, Kanyamaji Village within Siaya County; that these riots allegedly followed provocative public statements made by one Mr. Calvin Burgers of Dominion Farms; the riots resulted in the destruction of 19 acres of the 3rd Petitioner's sugarcane plantation valued at Kshs. 6,008,750.00/- alongside damage to its motor vehicles; that the damage was officially assessed and documented in a Crop Damage Assessment Report by the Ward Agricultural Officer, Central Alego dated 5th September 2025; the 3rd Petitioner promptly reported the incidents of property destruction and threats to its workers at the Siaya Police Station under OB Nos. 09/13/8/25, 45/27/8/2025 and 31/01/209/2025 specifically identifying the perpetrators; despite these formal reports, the 1st Respondent’s Siaya Office and officers of the 2nd Respondent have allegedly refused to pursue criminal charges against the identified perpetrators. Instead, they have demanded unspecified "compliances" and compromises from the 3rd Petitioner as a prerequisite to acting on its complaints; that the Petitioners aver that rather than arresting the actual rioters, the 1st and 2nd Respondents turned the criminal justice machinery against the 3rd Petitioner’s staff; that the 1st and 2nd Petitioners were summarily arraigned before the 4th Respondent in *Siaya PMCR Case No. E419 of 2025 (Republic v. Fredrick Oduor Omunda)* and *Siaya PMCR Case No. E420 of 2025 (Republic v. Fredrick Otieno Oduor)*; the Petitioners contend that these charges were preferred without any prior investigations, without the Petitioners being summoned to record statements and on the basis of weak, non-existent evidence that fails to link them to the crime scenes; that furthermore, the Petitioners highlight a malicious, punitive and systematic practice of "staged and sequential arrests"; that the 2nd Respondent has allegedly threatened to arrest at least 20 other employees from the 3rd Petitioner's security, transport and administrative departments (including General Manager Moses Apunda and Head of Security Peter Ladha); the police have expressed an intention to execute these arrests and charges in instalments specifically planning to arrest the employees on new, separate complaints immediately after they are presented in court and secure cash bail in preceding matters; that the Petitioners aver that this excessive weaponization of police power serves no lawful purpose and is designed to keep employees in perpetual fear and psychological distress; the Petitioners contend that the actions of the Respondents constitute a gross abuse of state power and violate several constitutional provisions: 13. Article 10 (National Values and Principles of Governance): The 1st Respondent has failed to uphold the principles of integrity, transparency, accountability and the rule of law. 14. Article 47 (Fair Administrative Action): The decision-making process to charge the Petitioners and ignore the actual aggressors is irrational, malicious, procedurally unfair and lacking in independent objective assessment. 15. Articles 49 & 50 (Rights of an Arrested Person and Fair Trial): Arraignment without investigations or proper summons, coupled with the threat of immediate re-arrest upon securing bail infringes upon the right to liberty and a fair trial. 16. Article 157(10) (Prosecutorial Independence): The 1st Respondent has compromised its constitutional independence by acting under the external direction, control and political influence of third parties specifically rival business entity Dominion Farms Limited and local politicians to wage collateral civil disputes through the criminal system. The Petitioners state that the ongoing harassment and arbitrary criminal process have severely disrupted the 3rd Petitioner’s workforce, damaged its corporate reputation and created a climate of fear among its employees. If the criminal proceedings are permitted to continue, the 3rd Petitioner will suffer irremediable financial loss and operational destabilization which is ultimately calculated by its rivals to force the cessation of its business operations in Siaya County. 1. The 1st and 2nd Interested Parties opposed the Petition through replying affidavits sworn on 9th April 2026 and written submissions filed by their advocates Ouma Munjal & Company Advocates. 2. The 1st Interested Party, Kennedy Ouma Opondo deposed inter alia; that the Petition is not supported by an affidavit to verify the alleged constitutional violations and provide evidentiary backing; that the supporting affidavit currently on the electronic record (uploaded in the Court Electronic System - CTS) was filed in support of an interlocutory application that has since been dispensed with, without his involvement or participation; based on the advice of his advocates, he stated that the Petition is fatally defective and must be struck out immediately for failing to comply with the mandatory provisions of Rule 11(2) of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules 2013; he stated that at all material times relevant to the case, he was and still ought to be the registered owner of motorcycle registration number KMFX 174E (a blue Honda 110); that on 27th August 2025 while carrying out his ordinary business as a bodaboda operator, the 2nd Petitioner (Fredrick Oduor Omunda) viciously and unlawfully attacked him without any color of right; the attack resulted in the malicious damage of his motorcycle which rendered him completely jobless. He emphasized that he was attacked and his property was maliciously destroyed in broad daylight by a person well known to him, namely the 2nd Petitioner; that following the attack, he reported the incident at the Siaya Police Station and was issued with OB No. 56/27/8/2025**;** that the 1st, 2nd and 3rd Respondents (the DPP, National Police Service and Inspector-General) in exercising their constitutional and statutory mandates under Articles 157, 243, 244 and 245 investigated the complaint and properly charged the 2nd Petitioner; he emphasized that the 2nd Petitioner was arrested and charged in his individual, personal capacity and not as an employee of the 3rd Petitioner (**Lake Agro Limited**). He stated he does not understand how the 3rd Petitioner and its other employees are involved in his case before the trial court; he deposed that he is a complete stranger to the allegations that Mr. Calvin Burgers of Dominion Farms led the destruction of the 3rd Petitioner’s sugarcane; he stated he has never been employed by Mr. Burgers. He added that if the Petitioners have evidence of property destruction by others, they are free to cause their arrest and prosecution but that has absolutely nothing to do with his criminal case; he stated he is a stranger to the police reports allegedly filed by the 3rd Petitioner under OB Nos. 09/13/8/25, 45/27/8/2025 and 31/01/209/2025;he reiterated that his case is strictly against the 2nd Petitioner who attacked him in broad daylight; he stated that the Petitioners have prematurely approached the High Court to frustrate and block the active criminal proceedings before the 4th Respondent (Siaya Magistrate’s Court) thereby stifling justice to his detriment; he accused the Petitioners of using "underhand methods" under the guise of the High Court's supervisory jurisdiction inviting the Court to prematurely exercise appellate-like powers over an ongoing trial; he maintained that the trial arose from a lawful complaint followed by proper investigations. That sufficient evidence exists to prosecute the 2nd Petitioner. That the 1st Respondent (DPP) made the decision to charge independently, in good faith and within its constitutional mandate. That the trial court has proper jurisdiction. That the Petitioners have failed to show any illegality, irrationality or procedural impropriety to satisfy the threshold for judicial review orders; he deposed that the 2nd Petitioner has adequate statutory remedies within the criminal trial process including the rights to defend himself, call witnesses, challenge evidence and cross-examine witnesses; he deposed that granting the orders sought by the Petitioners would amount to an unjustified interference with the independent mandates of both the prosecution and the trial court; he stated the High Court should not usurp the trial court's role by evaluating criminal evidence at this stage; as the complainant and victim of the crime, he deposed that he stands to be greatly prejudiced if the High Court halts or terminates the trial court proceedings; Conversely, he stated that the 2nd Petitioner will suffer no prejudice if the High Court dismisses the petition as he will still have a fair chance to present his defense in the criminal trial. 3. The 2nd Interested Party, Kennedy Ouma Opondo deposes inter aia; that the Petitioners' application is bad in law, incompetent, a non-starter, frivolous, replete with falsehoods, vexatious, malicious and a gross abuse of the court processes; he stated it is fit for nothing but dismissal or striking out, with costs awarded to him;he deposed that the 1st Petitioner **(Fredrick Oduor Otieno)** deliberately, maliciously and without any justifiable cause damaged his property; he asserted that the criminal proceedings before the trial court arose from a lawful complaint he made to the police, followed by proper investigations conducted in accordance with the law; he argued that the Petition is entirely misconceived, bad in law and an abuse of the court process for several reasons: 4. The lawful police investigations established that there was sufficient evidence to prefer criminal charges against the 1st Petitioner; 5. The decision to charge the 1st Petitioner was made independently, in good faith, and in the lawful exercise of the constitutional mandate bestowed upon the 1st Respondent (the Director of Public Prosecutions); 6. The criminal proceedings before the 4th Respondent (Siaya Magistrate’s Court) are lawful, proper and entirely within its jurisdiction; 7. The 1st Petitioner merely cited constitutional provisions at random without clearly demonstrating how his constitutional rights were violated by being prosecuted for maliciously damaging the deponent's property; 8. The Petition fails to meet the legal threshold required to grant judicial review or conservatory orders as the 1st Petitioner has demonstrated no illegality, irrationality or procedural impropriety; 9. The criminal justice process should be allowed to proceed to its logical conclusion. The 1st Petitioner has adequate alternative remedies within the criminal trial itself, where he can raise his defense, challenge the prosecution’s evidence and cross-examine witnesses; 10. He further deposed; that the orders sought by the Petitioners would amount to an unjustified interference with the independent mandates of both the prosecution and the trial court; he asserted that the High Court ought not to usurp the role of the trial court by making premature determinations on matters of criminal evidence; he stated that as the victim of the alleged offence, he stands to be greatly prejudiced should the High Court improperly exercise its powers to terminate the ongoing criminal trial before the subordinate court; he noted that while the High Court has the inherent power to inspect records of subordinate courts to satisfy itself of the correctness, legality, or propriety of the proceedings, such powers must be exercised judiciously and in accordance with established principles of law. He urged the Court to decline the Petitioners' invitation to abuse these supervisory powers. 11. The petition was canvassed by way of written submissions. The Petitioners and the interested parties complied while the 1st and 2nd Respondents neither filed responses nor submissions. 12. From the Petition filed in support of the Petitioners’ case, the key issues for determination before the Honourable Court are reduced to the following three: 13. Whether the 1st Respondent’s decision to charge the Petitioners is a violation of Article 157(10) of the Constitution regarding prosecutorial independence and objectivity. 14. Whether the "sequential arrests" by the 2nd Respondent constitute an abuse of the criminal process and a violation of Article 47 of the Constitution. 15. Whether the pending civil matter and external influence rendered the decision to prosecute an abuse of the legal process. 16. On the issue of whether the 1st Respondent’s decision to charge the 1st and 2nd Petitioners is a violation of Article 157(10) of the Constitution regarding prosecutorial independence and objectivity, the Petitioners point out that Article 157(1) of the Constitution of Kenya 2010 establishes the office of the Director of Public Prosecutions (DPP), the 1st Respondent herein, vesting the State’s prosecutorial powers within it. Under Article 157(10) of the Constitution, the DPP is explicitly protected from being under the direction or control of any person or authority. The Petitioners contend that while the 1st Respondent is mandated by Article 157(11) of the Constitution to have regard to the public interest, the interests of the administration of justice and the need to prevent and avoid abuse of the legal process, the decision to charge the 1st and 2nd Petitioners was made without any prior investigation or summons being issued to them before their arraignment. 17. The Petitioners draw attention to Chapter 3 of the *Guidelines on the Decision to Charge, 2019* (the Guidelines) which defines the decision to charge as: "... the Prosecution Counsel’s determination as to whether evidence availed by an investigator or investigative agencies is sufficient to warrant the institution of prosecution proceedings against an accused person in a Court of law. Due to its intrusive nature and potential adverse effect of the decision on the life, liberty or property of an accused person, it is the most important decision that is made by any prosecutor... Prosecutors are required to, and must exercise, due care in making the decision to charge." The Guidelines further state: "The decision to charge or not to charge requires an objective and independent analysis of the case... It is the duty of a prosecutor to ensure that the right person is prosecuted for the right offence, properly applying the law and ensuring that relevant evidence is submitted before the court..." 1. The Petitioners outline that the Guidelines require an objective standard to determine whether there is a "reasonable prospect of conviction." This obliges the prosecutor to consider key evidence and minimum file requirements depending on whether the Two-Stage Test or the Threshold Test applies. The Petitioners raise the question of whether the 1st Respondent strictly adhered to these standards when deciding to charge the 1st and 2nd Petitioners. Reference is made to the case of **Regina v Director of Public Prosecutions ex parte Kebeline and others [1999] 4 All ER**, which emphasized that the DPP's decision to institute charges is rarely interfered with unless actuated by dishonesty, bad faith or exceptional circumstances. 2. The Petitioners aver that the charges in this case are motivated by political influence and the interference of a rival entity, Dominion Farms seeking to coerce the 3rd Petitioner into shutting down operations. It is the Petitioners' position that this political influence directly compromised the directive to charge the 1st and 2nd Petitioners. The Petitioners question whether the 1st Respondent acted in an objective, independent and impartial manner, whether the decision was improperly influenced and whether it met the established evidential standards and requirements of a properly composed investigation file. The Petitioners submit that the 1st Respondent failed on all these counts. 3. The Petitioners call upon the Honourable Court to safeguard the integrity of the Office of the DPP, ensure its decisions are free from external influence and find that the decision to charge did not adhere to the Guidelines. The Petitioners rely on the case of **Republic vs Director of Public Prosecutions & 2 Others ex-parte Chrispinus Wafula Manyonge [2015] eKLR**, where the court held that prosecutorial power must not be exercised to aid a private personal vendetta. The Petitioners argue that charging the employees of a victimized company while ignoring the actual rioters is an unreasonable exercise of discretion. 4. Furthermore, the Petitioners cite the High Court decision in **Milimani HCCHR PET/E406/2024 – Alexander Fiksman vs the ODPP & 3 Others**, where Justice Lawrence Mugambi held that the DPP's "continuous power to review" is not unfettered and must be grounded in a reasonable basis rather than caprice. The Court emphasized that overturning a prior decision not to prosecute requires demonstrable justification, such as significant new evidence or a clear flaw in the original decision. In the present case, the Petitioners contend that the 1st Respondent has failed to produce any additional evidence or material to justify charging the 1st and 2nd Petitioners after the initial investigations. The decision is characterized as erratic, unlawful and unconstitutional as it ignores the reports of property destruction made by the 3rd Petitioner and instead targets its employees without fresh evidence. The Petitioners submit that the 1st Respondent’s decision lacks merit, fails the evidential test and represents a gross abuse of prosecutorial discretion in violation of Article 157(10) of the Constitution. 5. On the issue of whether the “sequential arrests” by the 2nd Respondent constitute an abuse of the criminal process and a violation of Article 47 of the Constitution,the Petitioners submit that Article 47 of the Constitution of Kenya 2010 guarantees every person the right to administrative action that is expeditious, efficient, lawful, reasonable and procedurally fair. They argue that the Respondents have embarked on a malicious pattern of multiple, sequential arrests arising from the same factual matrix. It is argued that arresting the 1st Petitioner on five separate counts in succession, specifically timed to occur immediately after bail is paid represents a calculated effort to destabilize him and subject him to psychological torture. 6. The Petitioners invoke the **Alexander Fiksman Case [Supra]**, which reaffirmed that judicial intervention is warranted where prosecutorial and police actions are arbitrary or oppressive. The weaponization of police powers to keep employees in perpetual fear serves no lawful purpose and undermines the integrity of the justice system. 7. The Petitioners contend that the 2nd Respondent’s strategy of "staged arrests" waiting for an employee to pay cash bail before immediately re-arresting them on a separate count arising from the same incident is highly oppressive. They reiterate Justice Lawrence Mugambi's caution that allowing such conduct to continue would be to condone an abuse of the criminal justice process. Despite the 3rd Petitioner lodging clear reports of property destruction (OB Nos. 09/13/8/25, 45/27/8/2025, and 31/01/209/2025) the 1st Respondent has failed to prefer charges against the aggressors. This selective prosecution is characterized as irrational and a violation of the 3rd Petitioner’s legitimate expectation of impartial treatment by the State. 8. The Petitioners submit that the systematic execution of arrests in installments is designed to harass the Petitioners and serves no legitimate law enforcement objective. They urge the Court to intervene and declare this conduct unconstitutional to protect the integrity of the criminal justice process. 9. In response to the arguments raised by the 2nd Interested Party, Wilson Omondi Olambo who claims the Petition is "fatally defective" for lack of a supporting affidavit, the Petitioners submit that the Petition is properly supported by the affidavit of Moses Apunda, the General Manager of the 3rd Petitioner sworn on 18th November 2025; Constitutional petitions are governed by the principle of substantive justice over technicalities under Article 159(2)(d) of the Constitution and the Interested Party’s claim that he is a "stranger" to the riots does not negate the fact that the State’s handling of the resulting cases has been procedurally flawed and discriminatory. 10. Finally on the issue of whether the pending civil matter and external influence rendered the decision to prosecute an abuse of the legal process, the Petitioners draw a parallel to the **Alexander Fiksman Case [Supra]**, where the petitioner successfully argued that criminal proceedings were being revived to pile pressure on him regarding a separate civil dispute. In that case, the Court found that the intervention of the complainant's advocates contributed to a decision that violated Article 10(2)(c) of the Constitution. 11. Similarly, the Petitioners contend they have demonstrated that Dominion Farms and a local politician have a collateral motive linked to ongoing civil disputes. The 1st Respondent’s failure to prosecute the actual aggressors who destroyed sugarcane valued at **Kshs. 6,008,750.00**/- while simultaneously targeting the victim company’s security and transport staff is a clear indicator of external direction and improper influence. 12. The Petitioners emphasize that the criminal justice system is being utilized as a retaliatory measure to settle private personal vendettas and gain leverage in civil disputes. In line with the holding in the **Alexander Fiksman Case [Supra]**, they submit that the DPP must act to prevent and avoid abuse of the legal process. By allowing the prosecution to be driven by the interests of a rival company rather than the public interest, the 1st Respondent has breached its constitutional mandate, necessitating the quashing of the charges *ab initio*. 13. In conclusion, the Petitioners submit that the evidence demonstrates a clear pattern of state power being used as a tool for harassment rather than the pursuit of justice. They contend that the criminal proceedings in *SIAYA PMCC No. E419 of 2025* and *E420 of 2025* are a nullity as they are born out of malice and external directions. Consequently, the Petitioners maintain that the decision to charge the 1st and 2nd Petitioners leading to the intended prosecution is unlawful, driven by malice and in violation of their constitutional rights. They respectfully pray that the Honourable Court finds the Petition merited and grants the declarations and orders of Certiorari and Prohibition as prayed. 14. The Interested Parties, who are the designated complainants in *SIAYA PMCR No. E419/2025* and *PMCR No. E420/2025* invite the Court to determine the matter based on three central issues: 15. Whether the 1st Respondent acted within its constitutional and statutory mandate in preferring charges against the Petitioners. 16. Whether the Petitioners have demonstrated a violation or threatened violation of their constitutional rights. 17. Whether the Honourable Court should interfere with the ongoing criminal proceedings. 18. On the issue of whether the 1st Respondent acted within its constitutional and statutory mandate in preferring charges against the Petitioners, the Interested Parties submit in the affirmative, arguing that the 1st Respondent acted strictly within its lawful powers. 19. In support of this position, the Interested Parties cite Article 157(6)(a) of the Constitution of Kenya 2010 which mandates that: "The Director of Public Prosecutions shall exercise State powers of prosecution and may (a) institute and undertake criminal proceedings against any person before any court (other than a court martial) in respect of any offence alleged to have been committed." 1. The Interested Parties further refer to Article 157(10) of the Constitution, which solidifies the office’s independence: "The Director of Public Prosecutions shall not require the consent of any person or authority and shall not be under the direction or control of any person or authority." 1. It is submitted that the decision to charge the 1st and 2nd Petitioners was properly arrived at following investigations conducted by the 2nd Respondent. The 1st Respondent made its decision upon a balanced consideration of the gathered evidence, the applicable legal principles and the public interest. The Interested Parties argue that because the Petitioners have failed to demonstrate that the Respondents acted in excess of their jurisdiction, in bad faith, maliciously or in abuse of power, the Petition must fail on this ground. 2. On whether the Petitioners have demonstrated a violation of constitutional rights, the Interested Parties submit in the negative asserting that the Petitioners have completely failed to prove any constitutional violations. 3. The Interested Parties rely on the locus classicus of **Anarita Karimi Njeru v Republic (Miscellaneous Criminal Application 4 of 1979) [1979] KEHC 30 (KLR)**, where the High Court established that: "...if a person is seeking redress from the High Court on a matter which involves a reference to Constitution, it is important (if only to ensure that justice is done to his case) that he should set out with a reasonable degree of 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 Interested Parties submit that constitutional violations must be pleaded with high precision, which is lacking in the present Petition. They observe that the Petition was primarily driven by the 3rd Petitioner. First, they point out that the 3rd Petitioner is not a party to the criminal proceedings before the trial court. Second, the 3rd Petitioner has not tendered any evidence proving that the 1st and 2nd Petitioners are its employees. Third, there is nothing which shows that the arrest and subsequent prosecution of the 1st and 2nd Petitioners violated any constitutional rights. 2. It is urged that the Court must not lose sight of the fact that the 1st and 2nd Petitioners allegedly committed the offenses in their individual capacities and not as employees of the 3rd Petitioner. If the 3rd Petitioner possesses relevant information regarding the criminal cases, it is free to present its evidence and face cross-examination during the trial before the Magistrate's Court. 3. The Interested Parties characterize the Petitioners’ claims as generalized allegations devoid of any specific demonstration of how their constitutional rights were infringed. They maintain that the criminal proceedings are lawful, having been commenced pursuant to established constitutional and statutory frameworks and that the mere fact of being charged before a competent court does not constitute a violation of rights. The trial court remains the proper forum for the Petitioners to defend themselves and cross-examine witnesses. 4. Finally on the issue of whether the Honourable Court should not interfere with ongoing criminal proceedings, the Interested Parties contend that it is settled law that the High Court must exercise restraint and refrain from interfering with ongoing criminal trials unless exceptional circumstances are proven. 5. To illustrate this principle, the Interested Parties cite **Republic v Director of Public Prosecution; Anti-Corruption Commission (Interested Party) (Judicial Review Application 78 of 2015) [2015] KEHC 7666 (KLR)**, where the High Court held: "...whereas the discretion given to the respondent to prosecute criminal offences is not to be lightly interfered with, that discretion must be properly exercised and where the Court finds that the discretion is being abused or is being used to achieve some collateral purposes... the Court will not hesitate to bring such proceedings to a halt. Similarly where the Respondent is shown not to be acting independently... the Court will not hesitate to terminate the proceedings..." 1. Distinguishing the present case from such exceptional circumstances, the Interested Parties present the underlying facts of the criminal charges; the 2nd Petitioner allegedly attacked the 1st Interested Party and maliciously damaged his motorcycle; the 1st Petitioner was arrested and charged with the offence of Grievous Harm contrary to Section 234 of the Penal Code for unlawfully causing grievous harm to the 2nd Interested Party. 2. The Interested Parties submit that the Petitioners have failed to show that the prosecution lacks a factual foundation, is malicious was instituted for collateral civil purposes or is an abuse of process. 3. They refer back to the **Republic v DPP (JR 78 of 2015)** decision where the Court in declining to halt criminal proceedings emphasized: "The Court in determining judicial review proceedings ought not to usurp the Constitutional and statutory mandate of the Respondent and Interested Party to investigate and undertake prosecution... Therefore, the mere fact that the intended or ongoing criminal proceedings are in all likelihood bound to fail... is not a ground for halting those proceedings... That an applicant has a good defence in the criminal process is a ground that ought not to be relied upon by a Court in order to halt criminal process undertaken *bona fides*..." 1. Based on these principles, the Interested Parties submit that the criminal justice system should be allowed to run its course. They contend that the evaluation of evidence is a matter strictly reserved for the trial court and the defenses raised by the Petitioners must be canvassed during the trial. The Interested Parties conclude that the present Petition is an attempt to defeat, delay or obstruct lawful criminal proceedings, emphasizing that constitutional litigation must not be used as a shield against lawful prosecution. They submit that the 1st and 2nd Petitioners will have an adequate opportunity to enjoy all fair trial guarantees under Article 50 of the Constitution before the trial court. 2. The 1st and 2nd Interested Parties respectfully pray that the Honourable Court finds the Petition lacks merit, dismisses it and directs that the criminal proceedings before the trial court proceed to their logical conclusion. 3. I have considered the petition together with the submissions filed. I find the issue for determination is whether the petition has merit. 4. The Interested Parties raised a preliminary hurdle regarding the procedural competence of the Petition. They point out that the supporting affidavit was executed by Moses Apunda, the General Manager of the 3rd Petitioner rather than the 1st and 2nd Petitioners themselves which they argue contravenes Rule 11(2) of the *Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013* (the Mutunga Rules). 5. In considering this, this Court must balance the technicalities of the law with the constitutional mandate under Article 159(2)(d) of the Constitution which directs that justice shall be administered without undue regard to procedural technicalities. However, this does not give a litigant a blank cheque to ignore procedural hygiene. In the landmark case of **Anarita Karimi Njeru v. Republic (1979) KLR 154**, the Court of Appeal established the principle that: *"If a person is seeking redress from the High Court on a matter which involves a reference to the Constitution, it is important... that he should set out with a reasonable degree of precision that of which he complains, the provisions said to be infringed and the manner in which they are alleged to be infringed."* 1. This standard was reaffirmed by the Supreme Court of Kenya in **Mumo Matemu v. Trusted Society of Human Rights Alliance & 5 Others [2014] eKLR**, where the Court emphasized that constitutional violations must be pleaded with specificity and supported by concrete factual evidence. Merely citing articles of the Constitution does not discharge the burden of proof. 2. In the present case, the 1st and 2nd Petitioners did not swear the verifying or supporting affidavits. While Moses Apunda deposes that he is authorized to swear on their behalf, the allegations of police harassment, physical arrest and threats to liberty are highly personal. The lack of direct, sworn statements from the affected individual accused persons weakens the factual link between the alleged administrative violations and the concrete realities of their cases. Nevertheless, rather than dismissing this matter on technicalities alone, we shall substantively interrogate the merits of the Petition. 3. The Petitioners challenge the 1st Respondent’s decision to initiate the criminal proceedings. The prosecutorial authority of the 1st Respondent is anchored under Article 157 of the Constitution. Article 157(10) strictly safeguards this office’s independence: *"The Director of Public Prosecutions shall not require the consent of any person or authority for the commencement of criminal proceedings and in the exercise of his or her powers, the Director of Public Prosecutions shall not be under the direction or control of any person or authority."* 1. This constitutional independence however is not absolute. Article 157(11) demands that the DPP have regard to the public interest, the interests of the administration of justice and the need to prevent and avoid abuse of the legal process. 2. The judicial attitude towards interfering with the DPP's mandate is highly conservative. In the Supreme Court decision of **Wafula v Director of Public Prosecutions; Ethics and Anti-Corruption Commission & 2 others (Interested Parties) [2025] KESC 46 (KLR)** the Court reiterated that the High Court in exercising its supervisory jurisdiction must not transform itself into a merits-reviewer of prosecutorial decisions. The Court held that issues regarding the sufficiency of evidence, the credibility of witnesses and the viability of defenses are the exclusive preserve of the trial court and do not constitute constitutional violations. 3. Applying these principles to the present dispute, the 1st Respondent presented evidence showing that the charges of Grievous Harm (under Section 234 of the Penal Code) and Malicious Damage to Property (under Section 339(1) of the Penal Code) are based on the individual complaints of private citizens who suffered physical injury and loss. The DPP applied the *Guidelines on the Decision to Charge 2019* and satisfied himself that there was a realistic prospect of conviction based on the available witness statements and medical examinations. 4. The corporate dispute between the 3rd Petitioner and Dominion Farms cannot serve as a shield against individual criminal liability. If the 1st and 2nd Petitioners committed offenses during the land fracas, they must face the law. The allegations of political interference are generalized and fall far short of the evidentiary standard required to show bad faith on the part of the DPP. 5. The Petitioners seek orders of *Certiorari* and *Prohibition* to stop the trials before the Siaya Magistrate's Court. In doing so, they invite this Court to bypass the trial court's jurisdiction. 6. Under the doctrine of constitutional avoidance, where a statutory mechanism or a subordinate trial court is fully empowered to resolve a dispute, a party must utilize that forum before invoking the extraordinary jurisdiction of the High Court. 7. In **Kuria & 3 Others v. Attorney General[2002] 2 KLR 69** the Court held that the constitutional court should not interfere with criminal proceedings unless it is shown that the prosecution is a sham, instituted without any legal basis and is being used to achieve collateral purposes. 8. The 1st and 2nd Petitioners have a full right to a fair trial under Article 50 of the Constitution. They are presumed innocent until proven guilty. They will have the opportunity to challenge the identification evidence, cross-examine the Interested Parties and call witnesses to demonstrate their innocence. There is nothing to suggest that the Siaya Magistrate’s Court is biased or incapable of delivering a fair trial. To halt the trial would be to deny the victims of these alleged crimes their right to be heard and to access justice under Article 48 of the Constitution. 9. On the totality of the pleadings, the affidavits and the applicable law, this Court finds that the Petitioners have failed to discharge the burden of demonstrating that the Respondents have violated or threatened their fundamental rights. I find that the DPP acted within his constitutional mandate under Article 157 and thus the trials before the subordinate court must proceed. 10. In view of the foregoing observations, i come to the inevitable conclusion that the Petition is bereft of any merit and that the same is hereby dismissed with no order as to costs. **Dated and delivered at Siaya, this 17th day of July 2026** **D.KEMEI** **JUDGE** **In the presence of:** **OTIENO………………………. …………..for the Petitioners** **SOITA……………………………………....for the 1ST Respondent** **N/A OUMA……………………………………………for Interested Parties** **MAUREENE………………………………………..Court Assistant**