https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7731

Titus v Independent Policing Oversight Authority & 2 others (Judicial Review E043 of 2026) [2026] KEHC 7731 (KLR) (Judicial Review) (5 June 2026) (Judgment) Neutral citation: [2026] KEHC 7731 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Law Courts) Judicial Review Judicial Review E043 of 2026 WM Musyoka, J June 5, 2026 Between Patrick Mutunga Titus Applicant and Independent Policing Oversight Authority 1st Respondent The Director Of Public Prosecutions 2nd Respondent and Godwin Mwashuke Mjomba Interested Party Judgment 1.These Judicial Review proceedings were initiated under certificate of urgency, by way of an ex parte chamber summons, dated 6th February 2026, in Milimani HCJR Miscellaneous No. E017 of 2026, for leave to commence a Motion for certiorari orders, directed at the respondents, to quash the decision to charge him with the murder of Shukri Adan Ibrahim, to be referred to hereafter as the deceased, and the criminal proceedings mounted in Makadara HCCRC No. E007 of 2026, or before any other court, against him and the interested party. 2.The ex parte chamber application was placed before the Judge, on 16th February 2026, and the leave sought was granted, and it was directed that the substantive Motion be filed, in a separate cause. 3.The contemplated Motion was filed herein, as directed, dated 17th February 2026. It is supported by the filings made at the leave stage. 4.According to the statutory statement, dated 6th February 2026, the applicant is a police officer, who was on duty with his colleague, the interested party herein, when an incident happened, where Shukri Adan Ibrahim lost his life. The applicant and the interested party were interrogated by the 1st respondent, and recorded statements, copies of which were subsequently given to them. It is averred that the witness statements of both the applicant and the interested party, the firearm register and the ballistics report, shown to him by the 1st respondent, confirm that the applicant did not discharge any bullet from his firearm. Due to that the applicant avers that he legitimately expected to be absolved of the matter of the death of the deceased. He expresses surprise that a charge was subsequently proffered against him. He asserts that that decision to charge him was unreasonable and abuse of court process. He also alleges that 2 officers of the 1st respondent wanted him to change his statement; to have it align with the demands of the 1st respondent. 5.The verifying affidavit, sworn by the applicant, on 6th February 2026, is virtually a replica of his statutory statement. The principal import of the affidavit is to place documentary material on record. There is a typed statement by the applicant, recorded with the 1st respondent, on 15th January 2026. There is a second typed statement by the interested party, recorded with the 1st respondent; copy of an extract from Daily Arms Issue Book, sheet No. 50; a letter, dated 11th January 2026, confirming handover of the firearms issued to the applicant and the interested party for ballistics analysis; another letter, dated 15th January 2026, confirming receipt of the said firearms; a letter, dated 5th February 2026, requesting for correspondence relating to the firearms, a copy of the daily firearms issue book for the period 10th January 2026 and 11th January 2026, and any other relevant record; a letter, dated 5th February 2026, forwarding the documents requested under the letter above also dated 5th February 2026; and a court document evidencing the registration of criminal charges, in Makadara HCCRC No. E007 of 2026, against the applicant and the interested party. 6.The respondents were served with the Motion, and they filed a replying affidavit, sworn on 26th February 2026, by Mr. Ibrahim Shunu. He is from the 1st respondent, and the lead investigator in the matter. He avers that the investigations, into the shooting of the deceased, were initiated within the statutory mandate of the 1st respondent. He asserts that the same was done professionally, independently and impartially, in line with Article 157(4)(6) of the Constitution, and a decision to charge was made, independently, by the 2nd respondent, in accordance with Article 157 of the Constitution. It is averred that the applicant participated in the investigations, and voluntarily recorded a statement. The allegations of coercion are contested. 7.It is argued that issues around the sufficiency, weight and credibility of the evidence would be a matter for the trial court; and that, in judicial review, the court should only be concerned with the decision-making, and not the merits of the decision. It is argued that the court would only interfere where it is established that there was malice, bad faith, illegality or abuse of process. It is asserted that it had not been demonstrated that the investigations were conducted unlawfully, irrationally, in bad faith or in a manner that was procedurally unfair. It is also asserted that the constitutional rights of the applicant had been adequately safeguarded within the criminal justice process, and that he shall be afforded a fair hearing. It is submitted that the threshold for certiorari has not been met. 8.The 2nd respondent has filed grounds of opposition, dated 5th March 2026. The grounds revolve around the application being premature and abusive of the court process; of offending Article 157(10) of the Constitution, with respect to the 2nd respondent not requiring the consent of anyone to institute criminal proceedings and not to be under the control of any person or authority; illegality, irrationality or procedural impropriety of the decision to charge not having been demonstrated; the court being invited to evaluate the substance of evidential material, when that ought to be the business of the trial court; judicial review proceedings being focused on the decision-making process, and not the merits of the decision; and whether the evidence exonerates the applicant being a matter for testing at the trial and not in judicial review proceedings; not demonstrated that the decision to charge was actuated by malice, bad faith, improper motive or abuse of prosecutorial power, which are the only exceptional circumstances upon which a judicial review court may interfere with the decision; 9.The others are that the allegations of coercion and improper investigative conduct are not supported by credible evidence, and the threshold for certiorari not being met; the proceedings being a disguised appeal against investigative findings and prosecutorial decision, which appellate jurisdiction does not exist; the adequacy of safeguards with the criminal justice process, including constitutional guarantees under Article 50; grant of the orders would amount to interfering with prosecutorial mandate; application being intended to forestall and obstruct the prosecution in Makadara HCCRC No. E007 of 2026; and public interest and interests of administration of justice with respect to a fatal shooting would require ventilation in a criminal court. 10.There is also an affidavit sworn by Mr. Anthony Kung’u, a Principal Prosecution Counsel with the 2nd respondent, on a date which is not legible from the copy of the affidavit before me. He avers that the statements taken from the applicant and the interested party had grave inconsistencies, which raised significant credibility concerns and doubts on their version of the events surrounding the death of the deceased, and which pointed to them as the prime suspects, as their conduct demonstrated a deliberate attempt to shield each other from culpability. It is argued that the applicant has not demonstrated any form of abuse of authority by the 2nd respondent, in making its decision to prosecute. 11.The applicant filed a further affidavit, sworn, curiously, on 5th February 2026, but ventilating on events of 17th and 18th February 2026. He avers to have had been charged in Makadara HCCRC No. E007 of 2026, which charges were withdrawn on 18th February 2026. He hazards a guess that the same could be due to concession by the respondents of the merits of his application. He expresses that, although the withdrawal of the charges may appear to render the application moot, he would still like to prosecute it. 12.The application is canvassed by way of written submissions, filed by all the sides in the matter. 13.The written submissions by the applicant, dated 6th March 2026, identify 5 issues for determination, which turn around the invocation of the jurisdiction of the court; merit review in judicial review proceedings; the recommendation to charge and the decision to charge being irrational, disproportionate and a violation of Article 157(11) of the Constitution; and the failure by the respondents to respond to the fact of the withdrawal of the charges being subject to adverse reference. Praxedes Saisi & 7 others vs. Director of Public Prosecutions & 2 others [2023] KESC 6 (KLR), Cyrus Shakhalanga Khwa Jirongo vs. Soy Developers Limited & 9 others [2021] eKLR, Edwin Harold Dayan Dande & 4 others vs. The Inspector General, National Police Service & 5 others SC Petition No. 6 of 2022, are cited. 14.The written submissions by the 1st respondent are dated 9th March 2026. They turn around 3 issues, on its statutory mandate to investigate, interference by the court through judicial review and whether a case for judicial review has been established. Meixner & another vs. Attorney General [2005] KECA 292 (KLR), Council of Civil Service Unions vs. Minister for the Civil Service [1984] 3 All ER 935, Associated Provincial Picture Houses Limited vs. Wednesbury Corporation [1948] 1 KB 223, Pastoli vs. Kabale District Local Government Council & others [2008] 2 EA 30, An Application by Bukoba Gymkhana Club [1963] EA 478, Republic vs. Vice Chancellor, Jomo Kenyatta University of Agriculture and Technology ex parte Cecilia Mwathi and another [2008] eKLR and Republic vs. Commissioner of Police & another Ex Parte Monari & another [2012] KEHC 4595 (KLR) are cited. 15.The written submissions by the 2nd respondent, dated 17th March 2026, turn on only 2 issues, the propriety of the decision to charge and whether a case for grant of the certiorari order is merited. Kenya National Examinations Council; GGN & 9 others (Ex parte) vs. Republic [1997] KECA 58 (KLR) and John Swaka vs. The Director of Public Prosecutions & 2 others [2013] KEHC 5422 (KLR) are relied upon. 16.There are only 2 issues for this court to determine, whether the High Court can intervene, through judicial review, with respect to the investigative and prosecutorial functions of the respondents; and whether there is any merit in the instant application. 17.On the first issue, the starting point should be with stating that the 2 respondents are entities within the Executive branch of the State, with clear constitutional and statutory foundations for their mandates. The court belongs to the Judicial branch of government, with its own clear constitutional and statutory lanes. The doctrine of separation of powers, set out in Article 1(3) and 174(i), expects each branch of government to stick to its own lane. The provisions of the Constitution, which sets up the investigative, prosecutorial and judicial authorities, all assert the decisional independence of each of these authorities, in the discharge of their respective mandates. 18.However, the independence stated in those provisions is not altogether without limits. The Constitution, at Article 10, sets out the national values and principles of governance that ought to guide public bodies in the discharge of their duties. They bind all State organs, State Officers and public officers, who have to apply the Constitution and the law, and implement public policy. The values and principles include rule of law, human dignity, equity, social justice, good governance, integrity, transparency and accountability. The independence of the State organs, entities and offices has to be exercised within the framework of these values. 19.These national values and principles find expression in the Bill of Rights, that is Chapter Four of the Constitution. The courts, particularly the High Court, are at the very core of the Bill of Rights, as the guardians of constitutional rights and freedoms, and they are where the people run to whenever their rights and freedoms are violated or threatened with violation. It is in that context that matters such as the instant one find their way in court. 20.Very often one gets the sense that some State organs, agencies and offices are uncomfortable with the court intervening into the discharge of their mandate. They view it as interference, and the respondents have said as much, in some of their filings in this matter. The court does not interfere, for interfering has the negative connotation of meddling with what it has no business in, for it merely discharges its duty, of intervening within the confines of the law. The court does not seek out or solicit for the filing of cases, they are filed by members of the public on their own volition, and once filed, the courts cannot ignore them or wish them away. 21.The court is vested with constitutional mandate, under the Bill of Rights, to entertain any claim, where rights and freedoms are alleged to have been violated or to be in danger of violation. The people equally have a right to rush to court, to challenge decisions of State organs, entities and offices, which have violated their rights or freedoms, or threaten such rights and freedoms. The State should not be irritated when members of the public file such claims, and when the courts entertain them. The Constitution has provided the framework for it, and the State has no option but to learn to live with that reality, and to abide by what the Constitution requires. 22.Executive powers and functions are limited, by the Constitution itself and any governing legislation. They are to be discharged within the narrow confines of what the Constitution and the governing legislation provides. Since they are limited, they would be open to challenge. The Constitution has provided pathways for such challenges. The key remedies available, which are identified in the Constitution, and elaborated in legislation, include certiorari, mandamus, prohibition and declarations. The applicant herein is seeking one of them. 23.The short of it is that the applicant is within his constitutional and statutory rights to challenge the discharge of the investigative and prosecutorial functions by the respondents, and the court is within its constitutional and statutory function to entertain such a challenge. 24.On the second issue, with respect to the merits of this case, I will start by stating that these are judicial review proceedings. The function of the court, seized of such proceedings, is to review and evaluate the decision being challenged, not on its merits, for that lies within the mandate of the decision-maker, but on the basis of the process leading up to the making of the decision. Of course, the review or evaluation cannot possibly avoid considering some of the matters from a point of view of merit, for process is intertwined with merit. However, the core remains the process, not the merits. The parameters for review are legality, rationality and procedural unfairness. See Pastoli vs. Kabale District Local Government Council & others [2008] 2 EA 30. 25.The decision, under challenge herein, is that relating to charging the applicant with murder. The 1st respondent recommended the charge to the 2nd respondent, and the 2nd respondent approved that charge, resulting in the applicant being presented in court for plea-taking. It was within the constitutional and legal mandate of the 1st respondent to carry out investigations, and to make recommendations for prosecution. The 1st respondent carried out investigations, and made recommendations to the 2nd respondent. It has not been demonstrated that the 1st respondent acted illegally, or exceeded its powers and functions in doing so, or indulged in illegal activity in the process. 26.The 2nd respondent is mandated by the Constitution and the relevant statutes to conduct public prosecutions, and in that regard, to work closely with the police authorities. That is what appears to be what was done in this case. After the 1st respondent made inquiries and conducted investigations, it forwarded its findings to the 2nd respondent, as the prosecuting authority, with what it considered to be appropriate recommendations. The 2nd respondent, upon receipt of the record and the recommendations, approved the prosecution. The applicant has not established that there was illegality in the manner the 2nd respondent discharged its responsibility, of receiving the investigation file, and making a decision on whether a prosecution should be conducted or not. The 2nd respondent is authorised to do just that, by the Constitution. 27.Rationality and reasonableness go together. This calls for venturing into the merits, to assess whether, based on the facts that were before the decision-maker, the decision arrived at was rational or reasonable. 28.The case by the applicant is that statements were taken from him and the interested party, in which they narrated the events. A post-mortem was conducted on the body of the deceased, to ascertain cause of death. The firearms that had been assigned to them were subjected to forensics, to determine whether or not they were used in the fatal shooting. He asserts that all those materials did not point to culpability on his part. Indeed, he argues that they exonerated him, which then makes him wonder at how a decision could be made to charge him. 29.To support his case, he has attached some documents to his affidavit. They are in 4 categories. The first category is of the 2 statements that were taken from him and his colleague. The second is of the armoury record, with respect to issuance of the firearms to him and his colleague. The third relates to the surrender of the firearms assigned to the applicant and the interested party. The fourth relates to the registration of the criminal case in court, in Makadara HCCRC No. E007 of 2026. 30.The material filed herein, with respect, does not help the case of the applicant at all. It cannot possibly be a complete record of what the 1st respondent had collected, in its investigations, to inform the recommendation made to the 2nd respondent. It was not the complete record that the 2nd respondent had when it approved prosecution. 31.A criminal case, more so one for murder, cannot be established based on the statements recorded from the suspects. The standard of proof, in criminal cases, is beyond reasonable doubt. Quite a heft of evidence must be marshalled, to prove all the aspects of the case. The applicant and the interested party, being the main suspects, would be the accused persons, and, therefore, they cannot be witnesses against themselves. The prosecution would have to rely on other witnesses, and I suppose that witness statements have been recorded from individuals who were at the scene of the shooting. The applicant ought to have placed such witness statements before me. 32.The fact of the death must be established, by way of an autopsy report. The applicant only alleges that he was shown a post-mortem report, but he has not placed it before the court. In any event, such a report, of and by itself, would not exonerate him. For a death caused by gunshot wounds, the report of a ballistics expert or a firearm examiner would be critical, for it is that report which should link the fatal gunshot injuries to the firearm borne by the accused. Most cases of fatal shootings rise or fall on account of the forensic evidence presented by ballistics experts, to bring out the linkage between the fatal injuries sustained by the deceased and the firearm handled by the accused person. The applicant has not placed before me any such report. 33.I could go on and on. Without copies of the statements recorded from the witnesses that the respondents intend to call, a copy of the post-mortem report and the report of the firearms examiner, which I believe was the material that the respondents had before them, when they made their decisions, it would be impossible for me to assess the rationality or reasonableness, or lack of it, of the said decisions. I am invited to evaluate the decisions of the 2 officers, which I can only meaningfully do when I have before me the same material that was before them, when they made the decisions. 34.I am alive to the fact that the said material was or is in the hands of the respondents. However, it is the applicant who has come to court, with his allegations. The duty is on him, to place on record the relevant material, to establish that which he alleges. He has not discharged that burden. 35.I have seen his submission, that the respondents have not reacted to his allegation that the charges against him have been withdrawn, and that that pointed to them not having evidence to support their case against him. The applicant invites the court to make an adverse inference. With respect, the applicant is being too simplistic. Firstly, this is not a criminal trial, where such a reference can be made of evidence. Secondly, withdrawal of charges means very little, so long as there has been no acquittal. The applicant can still be charged. The respondents have not explained the withdrawal to this court. They were under no obligation to, for the withdrawal has nothing to do with the application before me. The said withdrawal could be merely strategic, in view of the stay order, which only suspended the trial of the applicant, and not that of the interested party. The silence of the respondents on the matter of the withdrawal is of no significance. 36.On procedural unfairness, the applicant has not alluded to any incidence of the same. None of the material placed on record point to it. The less I say on it the better. 37.In view of everything said here above, I find and hold that there is no merit in the Motion, dated 17th February 2026. The same is hereby dismissed. The stay order, granted on 16th February 2026, is hereby discharged. Orders accordingly. DELIVERED, VIA EMAIL, DATED AND SIGNED IN CHAMBERS, AT MILIMANI, NAIROBI, ON THIS 5TH DAY OF JUNE 2026.W MUSYOKAJUDGEMr. B Rinkanya, Court Assistant.AdvocatesMr. Migele, instructed by Migele & Company, Advocates for the applicant.Mr. Lusweti, instructed by the Independent Policing Oversight Authority, for the 1st respondent.Mr. Lyaga, instructed by the Director of Public Prosecutions, for the 2nd respondent.4