https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6860

Maina v Director Of Public Prosecution & 2 others (Judicial Review E021 of 2025) [2026] KEHC 6860 (KLR) (Judicial Review) (21 May 2026) (Ruling) Neutral citation: [2026] KEHC 6860 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Law Courts) Judicial Review Judicial Review E021 of 2025 TW Ouya, J May 21, 2026 Between Peter Kamau Maina Applicant and Director Of Public Prosecution 1st Respondent Inspector General Of The Police 2nd Respondent The Senior Principal Magistrate, Milimani Law Courts 3rd Respondent Ruling 1.The Applicant filed a Notice of Motion dated 6th February 2026 seeking to be enjoined as an interested party to the proceedings and leave to file responses to the Application. 2.The Application was supported by the grounds on the face of it as well as the supporting affidavit of Michael Mangeli Yumbya sworn on 6th February 2026. 3.The Applicant’s case is that the proposed Interested Party is the complainant and victim in Criminal Case No. MCCR/E524/2024, which criminal proceedings are the subject matter of the present Judicial Review application. 4.He asserts that in the event that the orders of prohibition sought by the Applicant are granted, it will bar the prosecution from proceeding with the criminal case instituted in respect of the proposed interested party’s complaint as the Applicant is the accused person in MCCR/ E524/2024. 5.It is the proposed Interested Party’s case that on 1st February 2024, he entered into an agreement with Irfan Rajwan Patel and Abdulrasak Mohamed Ronaldo, directors of Golden Relief Resources Limited, for the purchase of an excavator at Kshs. 6,000,000.00. He was instructed to remit the purchase price through the Applicant's M-Pesa account. Consequently, he paid Kshs. 3,250,000 via the Applicant's M-Pesa number; and Kshs. 800,000 in cash to Irfan Rajwan Patel, making a total of Kshs.4,050,000.00 yet the excavator was never delivered nor was any refund made. Accordingly, he reported to the police, investigations were conducted, and the Director of Public Prosecutions lawfully approved charges against the accused persons, including the Applicant. 6.Therefore, the interested party stands to suffer direct prejudice, denial of access to justice, and financial loss if the proceedings are determined without his participation. 7.The proposed Interested Party also filed submissions where he submitted that the court is empowered to, add the name of any person whose presence before the Court may be necessary in order to enable it effectually and completely to adjudicate upon and settle all questions involved in the suit pursuant to Order 1 rule 10 (2) of the Civil Procedure Rules. 8.The proposed Interested Party maintains that he has met the threshold for grant of the orders sought as outlined by Nambuye, J. (as she then was) in Joseph Niau Kingori v Robert Maina Cheqe & 3 others [2021 KEHC 1792 (KLR). He contends that the position of the DPP as the defender of the public interest is distinct from the role of the victim. In any case, the joinder shall not compel the court to operate outside its scope or mandate as a judicial review court. 9.He added that while the Applicants stands to suffer no prejudice if the proposed Interested Party is enjoined to the suit, the proposed Interested Party stands to suffer prejudice if the application is determined without his participation. It is therefore in the interest of justice that the application be allowed as prayed. 10.The Respondent opposed the application by filing submissions dated. He contends that the Applicant lacks any direct interest in the matter as the DPP is the proper complainant in the criminal case on behalf of the State. Therefore, any interests that the proposed interested party has can be sufficiently addressed by the DPP. Hence, there is no need to have the proposed interested party enjoined to the proceedings. Reliance was placed on the case of Trusted Society of Human Rights Alliance v Mumo Matemu & 5 Others [2014] eKLR to urge the position that such joinder would dilute the case and subject it to unreasonable delay. Analysis and determination; 11.Upon perusing the application as well as the affidavits and rival submissions, this court identifies the following to be the issue for determination is whether or not the intended interested party has made out a case for the grant of the orders sought. 12.The mere fact that the respondent is a party to the Suit, and vested with the state powers of prosecution, cannot form the basis of denying the intended interested party the order to participate in the proceedings before this court. The intended interested party as the complainant in the criminal court has an identifiable stake and an interest in what is going on before this court and to deny the complainant access to the proceedings before this court will amount to denying the Intended interested party his right to fair hearing as a complainant as guaranteed under Article 50 of the constitution and I so hold. 13.I am guided by the case of Kingori vs. Chege & 3 Others [2002] 2 KLR 243 where the learned Judge stated that the guiding principles when an intending party is to be joined are as follows:a.He must be a necessary party.b.He must be a proper party.c.In the case of the defendant there must be a relief flowing from that defendant to the plaintiff.d.The ultimate order or decree cannot be enforced without his presence in the matter.e.His presence is necessary to enable the Court effectively and completely adjudicate upon and settle all questions involved in the suit. 14.As the complainant in Milimani MCCR/ E524/2024 wherein the Ex-parte Applicant is the accused person, it is clear to this court that the Applicant has an interest not just in the proceedings herein, but also in the would be orders of the court. 15.I am satisfied that the applicant as a complainant in the criminal case his presence is necessary to enable the Court effectively and completely adjudicate upon and settle all questions involved in the suit. 16.The upshot of the matter is that the application dated 6th February 2026 is merited and is hereby disposed as follows:i.Michael Mingeli Yumbya is hereby enjoined to this suit as an interested party.ii.The Ex-parte Applicant and the Respondents shall serve the Interested Party with all the pleadings within 7 days of today’s date.iii.The Interested Party is hereby granted leave to file responses to the substantive motion within fourteen (14) days.iv.The Exparte Applicant is at liberty to file a further affidavit if necessary.v.The matter shall be mentioned on 1st July 2026 for compliance. DATED, SIGNED AND DELIVERED AT NAIROBI THIS 21ST DAY OF MAY, 2026.T.W. OUYA, OGWJUDGEIn the presence of:Ms. Ntabo for Mulabi for 1st RespondentNo appearance for all other partiesHamza/Kevin – Court Assistants