https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11805

REPUBLIC OF KENYA IN THE HIGH COURT OFKENYA AT MACHAKOS JUDICIAL REVIEW NO. E015 OF 2025 # IN THE MATTER OF ARTICLES 2 (1), 23 (3) (F), 27 AND 157 OF THE CONSTITUTY OF KENYA, 2010 AND IN THE MATTER OF ORDER 53 RULE 3 OF THE CIVIL PROCEDURE RULES, 2010 AND # IN THE MATTER OF AN APPLICATION FOR JUDICIAL REVIEW ORDERS OF CERTIORARI AND PROHIBITION  AND # IN THE MATTER OF PROCEEDINGS IN KITHIMANI MAGISTRATE'S COURT CRIMINAL CASE NO. E457 OF 2025 BETWEEN # REPUBLIC ..........................................................................APPLICANT VERSUS ## KITHIMANI PRINCIPAL MAGISTRATE’S COURT ........1ST RESPONDENT ## THE DIRECTIOR OF PUBLIC PROSECUTIONS...........2ND RESPONDENT ## THE DIRECTOR OF CRIMINAL INVESTIGATIONS.....3RD RESPONDENT AND JOSEPH MWANGANGI MUTHUI ........................EX- PARTE APPLICANT AND ## MICHAEL MUTUKU MULE .....................................INTERESTED PARTY **RULING** 1. This ruling is on the *Ex-parte* Applicant’s (hereinafter referred to as “**the Applicant**”) substantive Motion dated 30th August 2025 seeking for the following orders:- 2. *THAT this Honourable Court be pleased to issue an Order of Certiorari directed against the 1st 2nd and 3rd Respondents to quash the charge sheet and subsequent proceedings in Kithimani Principal Magistrate's Court Criminal Case No. E457 of 2025, R -vs- Joseph Mwangangi Muthui.* 3. *THAT this Honourable Court be pleased to issue an Order of Prohibition barring the 1st, 2nd and 3rd Respondents from charging, arraigning and/or proceeding with any criminal trial against the Ex-parte Applicant in relation to the offence of obtaining money by false pretence as alleged in Kithimani Magistrate's Court Criminal Case No. E457 of 2025, R vs- Joseph Mwangangi Muthui.* 4. *THAT the costs of this Application be provided for*. 5. The application is supported by the supporting affidavit sworn by the Applicant on 30th August 2025 and is premised on the grounds that: 6. The Applicant was charged with three (3) Counts of the offence of obtaining money by false pretence contrary to Section 313 of the Penal Code in Kithimani Magistrate's Court Criminal Case No. E457 of 2025. 7. The Applicant is accused of obtaining money from the three Complainants, that is, GIDEON KIILU MUEMA, EMMILIO MUSYIMI KITHOME and NAOMI WAYUA MAINGI on diverse dates between 23rd August, 2023 and 6th September, 2023 by falsely pretending that he was in a position to Secure positions for them at the Kenya Defence Forces. 8. The Complainants in their witness statements recorded with the police sated that they gave the Interested Party money that was meant secure positions for them at the Kenya Defence Forces. 9. The Interested Party, Michael Mutuku Mule, who was the actual recipient of the bribe was not charged with the offence of obtaining money by false pretence. 10. The decision to investigate, arrest and charge the Applicant was discriminatory, improper, an abuse of court process and was meant to salvage the Interested Party, who is currently working with the Kenya Defence Forces. 11. The 2nd Respondent blatantly violated Article 157 of the Constitution in discriminatorily and selectively deciding to prosecute the Applicant instead of the Interested Party. 12. The criminal proceedings against the Applicant in Kithimani Magistrate's Court Criminal Case No. E457 of 2025 were initiated in bad faith to scapegoat the Applicant who never received any money from the above-mentioned complainants. 13. Furthermore, the charge sheet is fundamentally tainted and founded upon an illegality, and in particular, bribery relating to recruitment into the Kenya Defence Forces and cannot form a legitimate foundation for a lawful charge against the Applicant. 14. A Court of justice cannot enforce or lend its aid to a claim or charge that is founded on an illegality. 15. Permitting this charge to proceed would be tantamount to allowing the court to sanitize and enforce an illegality, thereby undermining the integrity of the judicial process. 16. The continuance of the criminal proceedings against the Applicant in the above-mentioned criminal matter amounts to an abuse of court process and continued violation of the basic tenets of non-discrimination, equity and equality and social justice. 17. If this Court does not urgently intervene, the Applicant's right to non-discrimination and equality before the law will continue to be violated by the illegal and irrational decision to charge by the 2nd Respondent, thus occasioning irreparable injury to the Applicant. 18. The Applicant herein has sought and obtained leave from the High Court to commence these proceedings. 19. It is in the interest of justice to hear this application urgently and grant the orders sought. 20. The Respondents will not in any way be prejudiced if the Application is granted. 21. The Motion is opposed by the Director of Public Prosecutions vide the grounds of opposition dated 27th November 2025 as follows: 22. THAT this application is an invitation to this honourable court to intervene against the Respondent from exercising of its constitutional mandate under Article 157 of the constitution without a proper legal basis. 23. THAT the decision to charge the applicant is based upon independent review of available evidence and other guiding principles established by the office of the director of public prosecutions. 24. THAT the applicant has not adduced any independent evidence to show that the criminal proceedings against the applicant are mounted for an ulterior purpose. 25. THAT the decision to charge the applicant is based on sufficient evidence that was collected by the investigating officer which is independent of the alleged civil case. 26. The Director of Criminal Investigations too opposed the Motion vide a Replying Affidavit sworn on 3rd December 2025 by No. 1189xx PC Lucky Makori who depones that there was no malicious scheme to arrest and charge Joseph Mwangangi Muthui (Applicant herein) on 29th March 2025 as falsely stated by his advocate, rather his court sermons were of 29th March 2025. That on diverse dates between the 23rd August 2023 and 6th September 2023, the Applicant obtained monies amounting to Ksh.588,000 from the complainants; Gideon Kiilu Muema, Emmilio Musyimi Kithome and Naomi Wayua Maingi who are all close neighbours to Michael Mutuku Mule. The Applicant was never a stranger to Michael Mutuku Mule, the Interested Party. The two had earlier worked as military officers and later on Joseph Mwangangi Muthui exited the force and left his friend Michael Mutuku Mule who is current in active service. The Applicant had informed the Interested Party that he had ventured into the procurement work industry and in particular, the supply of medical equipment to both Kenya Medical Training Institutes and also the Memorial Military Forces Hospital. 27. After several encounters with the two friends, Joseph Mwangangi Muthui informed Michael Mutuku that through his nature of work and especially on the supply of medical equipment in the Military Hospital, he was able to interact with high-ranking senior officers in the Military. 28. The Applicant convinced his friend Michael Mutuku that he was able to get a few people to join the Military during the recruitment process that was scheduled to take place that year in 2023. Michael Mutuku had actually turned down the three neighbours who had also asked for a hand in helping one to join the Military. The Applicant requested Michael Mutuku to collect money on his behalf, an amount he clearly explained to Michael Mutuku that would be used as an appreciation token whoever was helping him in the recruitment process. 29. The monies sent to Michael Mutuku Mule from his three neighbours would immediately be sent to the Applicant’s Equity account number and when the recruitment process was over and no vacancy had been secured to any of the three complainants, Michael Mutuku would ask his friend the Applicant to refund back that amount but all was in vain. At one point Michael Mutuku actually gave mobile number of the Applicant to one of the complainants Naomi Wayua Maingi to see whether he would refund that amount, and the reply was always the same to all *'I will refund*'. The complainant acknowledges the testimony in her statement. At one time Naomi Wayua Maingi was trying to find funds to help his son to enrol to the university for studies. Having tried all the necessary means to see whether she would get her money back, she walked into Matuu police station and explained to the deponent his ordeal and get police assistance. 30. On the 12th January 2024 the police summoned Michael Mutuku to the police station and he too explained what had happened and how he was a victim since the three neighbours were always on his neck. Michael Mutuku tried calling his friend on that particular day and he sent Kshs.45,000. He was forced to secure a loan of Kshs.150,000 to clear Naomi Wayua’s amount to avoid a lot of complaints, hoping that he would get his money when the total amount he sent would finally be refunded. 31. On the 30th June 2024, Michael Mutuku came back to the police station and informed the deponent that Joseph Mwangangi Muthui was yet to fulfil his refund and the remaining two had been repeatedly asking for their money, now that they had heard the Naomi Wayua had been refunded. Efforts to reach the Applicant through his mobile phone were met with several unanswered calls. 32. That Michael Mutuku had not yet gotten any amount from the Applicant apart from the Kshs.45,000/= he had sent that day to be given to Naomi Wayua. A report was booked on the same day vide OB No. 30/30/06/2024. All the necessary documents were handed to the deponent and he began his investigations. 33. The deponent swore an affidavit on the 1st day of July 2024 to investigate the book of account of Joseph Mwangangi Muthui domiciled at Equity Bank Kenya. On the 9th November 2024, the deponent sent official sermons to the Applicant after several interventions to grant a window of paying the amount in question outside court. The Applicant never acknowledged the sermons and the deponent herein planned to effect an arrest at the Applicant’s house in Kitui. 34. On 11th November 2024, the deponent received summons to appear before Kitui High Court on 15/ 11/2024 in an application of certificate of urgency in HCR.MISCAPPL/E084 of 2024. He was unable to appear before court since it was on a short duration notice and explained to the then prosecutor through a phone call. The Applicant was later granted an anticipatory bail for 3 months and to which he was to avail himself at DCI offices for statement recording. He never showed up even after several communications with him 1. The deponent was forced to sum up his investigation and also captured in the covering report how efforts to reach out the Applicant to record his statement were in vain. At one point the Counsel representing the Applicant called and informed the deponent not to bother his client. 2. On the 29th April 2025, the deponent registered the file and requested for sermons be served upon the Applicant to appear before Kithimani SPM Court on 02/5/2025 for plea. The Applicant indeed availed himself on the said day and was charged before court. 3. The court gave directions for the application to be canvassed by way of written submissions. The Applicant, the Director of Public Prosecution and the Director of Criminal Investigations filed their respective submissions. 4. The Applicant while submitting on whether the charge sheet and proceedings in Kithimani MCCR No. E457 of 2025 should be quashed, submits that the decision to charge him in this case appears to have been skewed and evidently biased against the Applicant who did not have any hand in receiving the purported bribes alleged to have been sent. Each and every Victim described the Interested Party in this case, Micheal Mutuku Mule as the one who approached them with the promise of securing them a position in the Kenya Defence Forces. 5. Gideon Kiilu Muema who is one of the Victims in this matter stated expressly in his statement that he was approached by Micheal Mutuku (the Interested Party) who said that he could secure him position in the Kenya Defence Forces if he paid Kshs.200,000 as appreciation fees, which he amounts he says he advanced to Micheal Mutuku. Gideon Kiilu Muema in his statement further stated that he asked Micheal about the position afterwards and Micheal stated that he would issue him with calling letters before the last day of recruitment. After the letters did not come. Gideon Muema then asked Micheal Mutuku (the Interested Party) for a refund but never refunded the amount advanced to him to this date. 6. Emilio Musyimi Kithome the 2nd Victim in his statement stated that Micheal Mutuku (the Interested Party herein) who is also their neighbour, came to their house and informed them that he could secure a position in the Kenya Defence Forces Recruitment for September 2023. He however asked for an appreciation of Kshs.200,000/= which he was given by the 2nd Victim herein. However, after the recruitment period passed, the Interested Party in this matter highlighted that he would refund the money which he has not done to this date. 7. Naomi Wayua Maingi, the 3rd Victim in her statement stated that the Interested Party herein Micheal Mutuku approached her and stated that he could secure a position for his son Joseph Musyimi if she pays appreciation fees of Kshs.200,000/=. Naomi agreed and sent the money to the account of Micheal Mutuku domiciled at Equity Branch, Matuu. However, after the position did not materialize, Micheal then promised to refund the amount of money to Naomi and did so later on but also learn that other parties were never refunded their money. Reliance was placed in the case of **Benard Ombuna vs Republic [2019] (KLR)** the Court of Appeal in paragraph 13 of its decision had this to say on the fatality of a defective charge sheet; “*Be that as it may, as this Court appreciated in JMA vs. R [2009] KLR 671 that not all defects in a charge sheet will render a conviction thereunder invalid. Over time, the test of determining whether a charge sheet will render a conviction thereunder invalid. Over time, the test of determining whether a charge is fatally defective so as to render any conviction a nullity has been established, both in our jurisdiction and other jurisdictions.*” In that regard, the Supreme Court of India in Willie (William) Slaney vs. State of Madhya Pradesh A.I.R. 1956 Madras weekly Notes 3911, held that:- *"Whatever the irregularity, it is not to be regarded as fatal unless there is prejudice. It is the substance that we must seek. Courts have to administer  justice and justice includes the punishment of guilt just as much as the protection of innocence. Neither can be done if the shadow is mistaken for the substance and the goal is lost in the labyrinth of insubstantial technicalities. "* 1. From the accounts of all the victims in the original case, it is evident that the Interested party was the recipient of all the monies that are alleged to be unlawfully obtained. No Mention of the Applicant is made to show any receipt of money or any conversation pertaining to any position being secured. It is only the Interested Party herein-Michael Mutuku who is mentioned severally as to being the propagator and recipient of the appreciation fees from all the victims/complainants. It is therefore very disturbing that the Applicant found himself being charged with charges of obtaining money by false pretence when there is a clear record of the party having obtained the money from the Victims. In this line your Honour, the charge itself and the Applicant being charged are clearly defective and should not be entertained by a competent Court of Law. 2. As to whether the Respondents should be barred from charging, arraigning or conducting proceedings against the Applicant in Kithimani MCCR No. E457 of 2025, the Applicant submits that from the above submission and illustrations, it has been clearly been illustrated how the very root of this case against the Applicant is skewed and misconceived. The Applicant was wrongly charged for acts that have been committed by the Interested Party and even though, the Office of the Director of Public Prosecutions alleges to have independently reviewed the evidence available, they have not presented any evidence before this Court to support their claim. 3. The Applicant was not incorrectly charged with the offence of obtaining money by false pretence as he did not initiate nor receive any money from the Victims in this case for a promise of an act that didn't materialize. In the case of **Gerald Ndoho Mujunga vs Republic 120161 (KLR)** the Court highlighted the following about the offence of obtaining money by false pretence; *"...Perhaps the most explicit exposition of the ingredients of the offence of obtaining by false pretences is to be found in the decision rendered by the  Nigerian Supreme Court on Friday April 2006 in the case of Dr. Edwin U. Onwudiwe vs Federal Republic of Nigeria where the court stated as follows:-* *"In order to succeed in a charge of obtaining by false pretences, the prosecution must prove:-* * 1. *that there is a pretence;* 2. *that the pretence emanated from the accused person:* 3. *that it was false:* 4. *that the accused person knew of its falsity or did not believe in its truth:* 5. *that there was an intention to defraud; that the thing is capable or being stolen:* 6. *that the accused person induced the owner to transfer his whole interest in the property.”* 1. That it is evident that the Applicant from the above illustrated decision was not privy to any of the transaction and did not issue any promises to the Victims/Complainants but it was instead the Interested Party Micheal Mule who committed the offence but was surprisingly and conveniently not charged. The 1st Respondent herein failed in correctly instituting the decision to charge as is their Constitutional mandate. That the Applicant was therefore wrongly charged and presented before the Honourable Court in Kithimani MCCR No. E457 of 2025 on fabricated charges which is illegal as per the tenets of the law and the Constitution of Kenya 2010. It is therefore in the pure interests of justice that an order be issued by this Honourable Court barring the 1St,2nd and 3rd Respondents from charging, arraigning and/ or proceeding with any criminal trial against the Applicant in relation to the offence of obtaining money by false pretence as alleged in Kithimani MCCR No. E457 of 2025. Reference is made to the case of King’ori & 9 Others vs Republic [2024] (KLR) where the Court had this to say about a defective trial as is the case in Kithimani MCCR No. E457 of 2025 in the matter as hand; *“Therefore. A retrial after a defective trial should only be ordered if it’s in the interests of justice and if no prejudice will be suffered by the appellants. In this case, noting the effluxion of time since when the alleged offense took place in February 2019, revitalizing a charge at this point would be prejudicial to the appellants and defeats the ends of justice as the appellants would be expected to plead afresh to a charge long after its occurrence. Consequently, I allow the appeal, quash the conviction and set aside the sentence of the trial court”.* 1. That costs follow the event. The Applicant has satisfactorily demonstrated the reasons why the Applicant’s rights were infringed and he was wrongly charged and presented before Court and therefore the application dated 30th August 2025 should be allowed also prays for costs of the application to be borne by the Respondents. 2. The 2nd and 3rd Respondents submit that the Judicial Review orders sought by the Applicant are not available to him as there is no evidence of dishonesty, abuse of office, mala fides or any other exceptional circumstances to show that the 2nd and 3rd Respondents did not give due regard to relevant matters. 3. The 2nd and 3rd Respondents also submit that the court should be shy in accepting invitations by a litigant to interfere with the independent exercise of Constitutional and Statutory authority by State; organs and independent offices except in those cases where such organs and offices are acting ultra vires, outside the confines of reasonableness, procedural fairness, mala fides and in total disregard of the doctrine of proportionality in decision making. 4. The 2nd and 3rd Respondents maintain that they had and have duly discharged their Constitutional duty in the circumstances of this matter. 5. In response to the prayer for costs, the 2nd and 3rd Respondents submit that the Applicant’s application lacks merit and should be dismissed with costs to the Respondents. However, in the event that this Court finds that the Applicant's application has merit, then parties should bear their own costs. 6. The 2nd and 3rd Respondents humbly pray that this court be pleased to dismiss the Application in its entirety. **Analysis and Determination** 1. I have considered the application, grounds of opposition, replying affidavit and the rival submissions. The issue for my determination is whether the orders of Certiorari and Prohibition sought by the Applicant ought to issue as prayed, 2. The Applicant in his application and submissions dated 27th March 2026 herein has extensively expounded on the proposed witnesses’ statements in the matter before the subordinate court and claims that he did not receive the alleged monies but instead it is the Interested Party who is responsible for the same and therefore the Interested Party ought to be charged for the offence and not the Applicant. The Applicant thus challenges the 2nd and 3rd Respondents’ decision to charge him with the offence of obtaining money by false pretence before Kithimani Magistrate's Court Criminal Case No. E457 of 2025. 3. What I gather from the plaedings herein is that a formal complaint was recorded at DCI Yatta police station that warranted an investigation to ensue. Under Article 45(4)(a) of the Constitution of Kenya, the Police are mandated to carry out investigations. The same is further reiterated in Section 24 of the National Police Service Act Revised 2014. 4. That once the investigations were complete, the resultant inquiry file was availed to the Office of Director of Public Prosecution for perusal and final direction and decision.  5. Article 157(6) of the Constitution of Kenya places the state powers of prosecution on the office of the Director of Public Prosecutions. It provides that: "*The Director of Public Prosecutions shall exercise Stale powers of prosecution and may-* 1. *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:* 2. *take over and continue any criminal proceedings commenced in any court (other than a court martial) that have been instituted or undertaken by another person or authority, with the permission of the person or authority; and* 3. *subject to clause (7) and (8), discontinue at any stage b fore judgment is delivered any criminal proceedings instituted by the Director of Public Prosecutions or taken over by the Director of Public Prosecutions under paragraph (b).* 4. Article 157(10) of the Constitution provides that the Director of Public Prosecutions shall not require the consent of anyone while commencing and instituting criminal proceedings. It provides that: *“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 or functions, shall not be under the direction or control of any person or authority”* 1. From the foregoing, it is trite that the 2nd and 3rd Respondents’ State powers as enshrined in the Constitution cannot be interfered with. The 2nd and 3rd Respondents are independent offices that cannot be directed by any authority or person in exercising their duties to commence or discontinue criminal proceedings against any person. 2. In **Douglas Maina Mwangi vs Kenya Revenke Authority and Another High court Constitutional Petition No. 528 of 2013 D.S Majanja J** (*May his soul rest in peace*) held that: *“1 do not find any reason or ground to intervene in that decision nor is it the obligation of the court to supervise the mandate of investigation and prosecution”* 1. Judicial review is a Constitutional supervision of public authorities involving a challenge to the legal validity of the decision. It does not allow the court of review to examine the evidence with a view of forming its own view about the substantial merits of the case. It may be that the tribunal whose decision is being challenged has done something which it had no lawful authority to do. It may have abused or misused the authority which it had. It may have departed from procedures which either by statute or at common law as a matter of fairness it ought to have observed. As regards the decision itself it may be found to be perverse, or irrational, or grossly disproportionate to what was required. Or the decision may be found to be erroneous in respect of a legal deficiency, as for example, through the absence of evidence, or through a failure for any reason to take into account a relevant matter, or through the taking into account of an irrelevant matter, or through some misconstruction of the terms of the statutory provision which the decision maker is required to apply. While the evidence may have to be explored in order to see if the decision is vitiated by such legal deficiencies, it is perfectly clear that in a case of review, as distinct from an ordinary appeal, the court may not set about forming its own preferred view of the evidence. See **Reid vs. Secretary of State for Scotland [1999] 2 AC 512.** 2. The broad grounds for the exercise of judicial review jurisdiction were stated in the case of **Pastoli vs Kabale District Local Government Council & Others [2008] 2 EA 300**at pages 303 to 304 thus: ***“In order to succeed in an application for Judicial Review, the applicant has to show that the decision or act complained of is tainted with illegality, irrationality and procedural impropriety: See Council of Civil Service Union v Minister for the Civil Service [1985] AC 2; and also, Francis Bahikirwe Muntu and others v Kyambogo University, High Court, Kampala, miscellaneous application number 643 of 2005 (UR).*** ***Illegality is when the decision-making authority commits an error of law in the process of taking the decision or making the act, the subject of the complaint. Acting without Jurisdiction or ultra vires, or contrary to the provisions of a law or its principles are instances of illegality…..”*** 1. It is therefore my view that for this Court to be able to grant judicial review orders for certiorari and prohibition sought by the Applicant in the instant application, it has to consider the correctness and legality of the process of arriving at a decision or action being challenged. This court has to consider whether it should quash the charges as against the Applicant in Kithimani Magistrate's Court Criminal Case No. E457 of 2025. This court having analysed the Applicant’s application, it has established that the Applicant’s contention is purely on matters of evidence which he alleges to be contained in the proposed prosecution’s witnesses’ statements. These proposed witnesses are yet to testify and this court is of the further considered view that the Applicant will have the opportunity to cross-examine the prosecution’s witnesses and to present his strong defence just in case he might be found to have a case to answer. The instant application is premature and meant to jump the gun over the proceeding in Kithimani Magistrate's Court Criminal Case No. E457 of 2025. 2. The Applicant has not demonstrated that the 2nd and 3rd Respondents’ decision to charge him as aforestated was wrong, unlawful and an abuse of their Constitutional mandate that has in any way infringed on his rights. 3. In addition, the Applicant has not shown to this court that his rights to a fair hearing and to defend himself as prescribed by Article 50 of the Constitution have been infringed by the decisions of the 2nd and 3rd Respondents or the Magistrate handling the case against him at Kithimani Law courts warranting the criminal proceedings to be quashed. The criminal proceedings do not in any way interfere with the Applicant's rights to defend himself in a court of law and raise all the issues raised therein as part of his defence. 4. In the absence of any evidence of illegality, bad faith or abuse of process of the court, it is this court’s finding that the Applicant has not presented sufficient material to demonstrate that there is basis to justify the orders sought. 5. The upshot is that: 6. **The Applicant’s application dated 30th August 2025 is found to be without merit and the same is dismissed in its entirety.** 7. **The Kithimani Magistrate's Court Criminal Case No. E457of 2025, R v Joseph Mwangangi Muthui shall proceed for hearing and determination.** 8. **There shall be no orders as to costs.** 9. I so order. RULING DATED AND SIGNED AT MACHAKOS THIS 23RD JULY 2026 **NOEL I. ADAGI** **JUDGE** DELIVERED VIRTUALLY ON TEAMS AT MACHAKOS THIS 23RD JULY 2026