https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12164

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT MALINDI** **MISCELLANEOUS CIVIL APPLICATION NO. E092 OF 2026** **IN THE MATTER OF AN APPLICATION FOR LEAVE TO APPLY FOR JUDICIAL REVIEW ORDERS OF PROHIBITION** **AND** **IN THE MATTER OF MALINDI CRIMINAL CASE NO. MCCR E135 OF 2025** **AND** **IN THE MATTER OF MALINDI ENVIRONMENT AND LAND COURT CASE NO. 106 OF 2024** **AND** **IN THE MATTER OF COURT OF APPEAL CIVIL APPLICATION NO. E006 OF 2025** **REPUBLIC.........................................................................................................APPLICANT** **BETWEEN** **FRANCO ESPOSITO.................................................................EX-PARTE APPLICANT** **VERSUS** **DIRECTOR OF PUBLIC PROSECUTIONS...................................1ST RESPONDENT** **CHIEF MAGISTRATE, MALINDI.................................................2ND RESPONDENT** **AND** **CECIL GUYANA MILLER............................................................INTERESTED PARTY** **RULING** **I. INTRODUCTION & BACKGROUND** 1. Before this Court for determination is the Ex-Parte Chamber Summons Application dated 16th July 2026, brought under the Court's Judicial Review jurisdiction. 2. The Ex-Parte Applicant seeks leave of this Court seeking *inter alia*, for Judicial Review Orders of Prohibition aimed at halting the criminal proceedings against him in ***Malindi Chief Magistrate Criminal Case No. MCCR E135 of 2025***. 3. The Applicant further prays that the leave, if granted, do operate as a stay of the said criminal proceedings pending the hearing and determination of the substantive motion. **BACKGROUND** 1. The dispute has a lengthy history spanning multiple court forums. 2. The Ex-Parte Applicant is a director of Woburn Estate Limited, which owns Woburn Residence Club. Dysara Investment Limited, a entity associated with the Interested Party, entered into a lease agreement with Woburn Estate Limited on 23rd July 2003. 3. A dispute arose regarding service charge arrears allegedly amounting to Kshs 5,679,072.04. Woburn Estate Limited invoked Clause 6.1 of the Lease Agreement to re-enter and repossess Apartment 3C. Consequently, the Interested Party initiated civil suit being ***Malindi ELC Case No. 106 of 2024****,* which was subsequently struck out with costs. 4. Aggrieved, the Interested Party moved to the Court of Appeal vide ***Civil Application No. E006 of 2025***, where a conditional injunction was granted restraining Woburn Estate Limited from dealing with the apartment on condition that Kshs. 2,500,000/= to be deposited within 21 days. The Interested Party defaulted on this condition, leading to the automatic discharge of the injunction. Following this, the Applicant re-entered the apartment. 5. Subsequently, the Interested Party lodged a complaint with the Police alleging housebreaking and theft of personal property including cash, jewellery, and chattels, culminating in the criminal charges against the Applicant in ***MCCR E135 of 2025****:* ***Republic VS Franco Esposito.*** **II. SUBMISSIONS BY PARTIES** 1. **The Applicant’s Submissions** 2. The Ex-Parte Applicant filed a chamber summons application seeking for: 3. *Leave to apply for Judicial Review Orders of Prohibition to block the Respondents from prosecuting him in Malindi Criminal Case No. MCCR E135 of 2025.* 4. *An interim stay of all criminal proceedings in MCCR E135 of 2025 pending the final determination of this substantive motion.* 5. The *Ex Parte* Applicant submits that following the failed civil motions, the Interested Party lodged a police complaint alleging housebreaking and theft of his personal items during repossession, resulting in active criminal charges against the Applicant. 6. Applicant argues thatthe criminal charges directly contravene the Court of Appeal's directions in ***Application No. E006 of 2025***, which implicitly validated the repossession upon the tenant's payment default. 7. He further argues that the issue stems entirely from a contractual breach. Any ancillary disputes regarding the execution or manner of the property repossession belong exclusively before the Environment and Land Court (ELC) and that criminal framework is being weaponized as a malicious tool to circumvent civil liability and bypass clear contractual obligations. 8. To support his position, the Applicant relies on the case of***Bank of Uganda v. Banco Arable Espanol (2002) 2 EA 333*** where the Court held thata contracting party cannot dispute or reject the authenticity of a condition precedent or clause once they have explicitly signed and agreed to be bound by it. 9. Thus, the Interested Party is strictly bound by Clause 6.1 of the lease allowing property re-entry following a 28 day service charge default. 10. He further relies on the case of ***Filipo Fedrini v. Ibrahim Mohamed Omar (2018) eKLR*** where the Court held thataautonomy of contract dictates that parties are free to choose the terms governing their legal relationship. The court's single responsibility is to enforce those terms without rewriting agreements. He thus urges this Court to enforce the clear contractual remedies chosen by the parties rather than permitting criminal intervention to alter the lease terms. 11. **The Respondents’ Submissions** 12. The state, through the replying affidavit sworn by Assistant Director of Public Prosecutions Ngina Mutua sworn on 28th July, 2026, strongly opposes this application, arguing that the criminal case is legitimate and should proceed to its conclusion. 13. The State highlights Article 157(10) to affirm that the office exercises its powers to initiate or terminate criminal proceedings completely independently. It explicitly states the DPP is not under the direction or control of any person or authority. 14. The Respondent further invokes Section 304(1) of the Penal Code, contending that the statutory provision forms the substantive legal foundation for the felony of housebreaking. This is the core criminal infraction underpinning the active prosecution initiated by the State. 15. The Respondent submits that a prior Application filed by the *Ex Parte* Applicant to discharge the criminal charges was already dismissed by the Chief Magistrate's Court, and no appeal was filed and that the 1st Respondent rejected a formal administrative request to drop the charges. 16. The criminal trial has already advanced through full hearings, witness testimonies, and cross-examinations. The court is scheduled to deliver a Ruling on whether the Accused has a case to answer on6th of August, 2026. 17. **The Interested Party’s Submissions** 18. The Interested Party through their submissions dated 29th July, 2026 strongly opposed the Applicant’s request to stop the criminal case. Their core arguments can be summarized as follows: 19. Under Article 157(11) of the Constitution of Kenya, the Director of Public Prosecutions (DPP) acts independently. The High Court should only interfere in highly exceptional circumstances where the prosecution is a clear abuse of process or driven by motives other than enforcing criminal law. 20. Citing the Supreme Court landmark decision ***Saisi & 7 Others v. DPP and the Court of Appeal decision DPP v. Daniele Lo Coco [2026],*** the Interested Party emphasized that the High Court cannot sit as a merits-based review forum to dissect evidence before a criminal trial runs its course. 21. Relying on Section 193A of the Criminal Procedure Code, the Interested Party argues that just because a matter involves a civil contract or an ongoing lease dispute, it does not bar the state from prosecuting criminal acts arising from the same set of facts. 22. The pending civil appeals involve *Woburn Estates Limited* and *Dysara Investments Limited* regarding immovable property. Conversely, the criminal file is specifically against *Ex Parte* Applicant herein as an individual for the theft of personal belongings including cash, jewellery, a wrist watch, a baby cot, and a thermos flask owned by Interested Party. 23. The Applicant already raised these exact arguments before the trial magistrate via a Notice of Motion dated February 25, 2025. That application was dismissed, and because the Applicant never appealed that decision, they cannot re-litigate the same issue in Court (*Res Judicata*). 24. The criminal trial has progressed extensively. Witnesses have already testified, the Applicant’s advocate has cross-examined them, and the court is currently preparing to rule on whether the accused has a case to answer. The trial court should be left to determine the final verdict. 25. The Applicant is asking the Court to interpret, enforce, and supervise orders originating from the Court of Appeal. The Interested Party submits that the High Court lacks the statutory jurisdiction to manage or oversee orders made by a superior appellate court. **III. ISSUES FOR DETERMINATION** 1. Having considered the pleadings, written submissions, and authorities cited by all parties, the main issues for determination are: 2. *Whether the Ex-Parte Applicant’s Chamber Summons Application dated 16th July 2026 is barred by the doctrine of Res Judicata or otherwise constitutes an abuse of the due process of the Court.* 3. *Whether a contractual right of re-entry under Clause 6.1 of a Lease Agreement ousts the statutory criminal jurisdiction of the State, or whether Section 193A of the Criminal Procedure Code (Cap 75) permits concurrent criminal prosecution.* 4. *Whether the 1st Respondent breached the constitutional threshold of independence under Article 157(10) and (11) of the Constitution of Kenya, 2010, or acted with malice and bad faith in initiating and maintaining Malindi Chief Magistrate’s Criminal Case No. MCCR E135 of 2025.* 5. *Whether the Ex-Parte Applicant has met the threshold for the grant of leave to apply for Judicial Review Orders of Prohibition.* 6. *Whether this Court should exercise its discretion to grant an Interim Stay of the criminal proceedings pending before the trial Court.* 7. *Who should bear the costs of this Application?* **III. LEGAL ANALYSIS** 1. ***Whether the Ex-Parte Applicant’s Chamber Summons Application dated 16th July 2026 is barred by the doctrine of Res Judicata or otherwise constitutes an abuse of the due process of the Court.*** 2. It is a well-settled principle of law that Judicial Review is not an appellate forum. A party aggrieved by a decision of a subordinate court must move by way of an appeal, rather than trying to litigate the same issue through a collateral attack under the guise of Judicial Review. 3. The record reveals that the Applicant moved the trial court via a Notice of Motion dated 25th February 2025 seeking a discharge of the charges. That application was heard and dismissed. The Applicant did not appeal. 4. To approach this Court over a year later on identical grounds is an invitation to this Court to sit on an appeal against a coordinate court's ruling. 5. The current application is barred under the doctrine of res judicata. It amounts to a clear abuse of the court process and must fail. 6. ***Whether a contractual right of re-entry under Clause 6.1 of a Lease Agreement ousts the statutory criminal jurisdiction of the State, or whether Section 193A of the Criminal Procedure Code (Cap 75) permits concurrent criminal prosecution.*** 7. The Applicant heavily relies on***Filippo Fedrini v. Ibrahim Mohamed Omar [2018] eKLR***to assert contractual autonomy. 8. Jurisprudence on concurrent jurisdictions is clear. Section 193A of the Criminal Procedure Code provides that notwithstanding the provisions of any other written law, the fact that any matter in issue in any criminal proceedings is also directly or substantially in issue in any pending civil proceedings shall not be a ground for any stay, prohibition or delay of the criminal proceedings. 9. While Clause 6.1 of the Lease Agreement governed the relationship between Woburn Estate Limited and Dysara Investment Limited, it did not give the Applicant license to commit a criminal offense during execution. 10. The civil dispute relates to the tenancy, whereas the criminal charge relates to personal movable chattels; $40,000 USD, a luxury watch, and household goods. The contract cannot be used as an omnibus shield against criminal accountability. 11. ***Whether the 1st Respondent breached the constitutional threshold of independence under Article 157(10) and (11) of the Constitution of Kenya, 2010, or acted with malice and bad faith in initiating and maintaining Malindi Chief Magistrate’s Criminal Case No. MCCR E135 of 2025.*** 12. The Supreme Court in ***Saisi & 7 Others v. Director of Public Prosecutions [2023] KESC 6 (KLR) established*** that the Court will only interfere with prosecutorial discretion in narrow and exceptional circumstances, such as where the prosecution amounts to a manifest abuse of court process or where there is a clear legal bar to the proceedings. 13. Further, Section 193A of the Criminal Procedure Code stipulates that the existence of parallel civil proceedings is not an automatic ground to stay or prohibit criminal proceedings. As reaffirmed by the Court of Appeal in ***DPP v. Daniele Lo Coco & 9 Others [2026] KECA 928 (KLR)***, civil liability and criminal liability are mutually exclusive, and both jurisdictions can proceed concurrently unless bad faith or clear manipulation is conclusively demonstrated. 14. Thus, this Court cannot sit as a merit shifting forum to weigh evidence before a trial concludes. 15. The 1st Respondent acted well within its constitutional mandate under Article 157(10); A formal complaint was made by a citizen, an investigation was conducted, and a charge sheet was drawn. 16. The independence of the 1st Respondent set out under the Constitution outwits this Court from intervening unless exceptional systemic malice is proved, which the Applicant has failed to do*.* 17. ***Whether the Ex-Parte Applicant has met the threshold for the grant of leave to apply for Judicial Review Orders of Prohibition.*** 18. Leave to apply for Judicial Review is only granted where the Applicant displays an arguable case with a probability of success. Further, a stay will not issue where it defeats the public interest in the swift administration of justice. 19. The criminal trial has run its full course. Witnesses have testified and have been cross-examined. The matter is already scheduled for a Ruling on Case to Answer on 6th August 2026. 20. It is my considered view that the *Ex-Parte* Applicant has failed to place before this Court any cogent or verifiable material to demonstrate that the criminal proceedings in ***Malindi Chief Magistrate’s Criminal Case No. MCCR E135 of 2025*** constitute an abuse of the court process or are driven by bad faith. Consequently, I find no basis to warrant the exceptional intervention of this Court by way of Judicial Review. 21. ***Whether this Court should exercise its discretion to grant an Interim Stay of the criminal proceedings pending before the trial Court.*** 22. The criminal charge in MCCR E135 of 2025 relates specifically to an alleged theft of chattels and personal belongings including cash, jewellery, and personal items belonging to the Interested Party. It is distinct in scope from the contractual dispute involving service charge arrears between Woburn Estate Limited and Dysara Investment Limited. 23. Whether the Applicant merely moved items into "safe custody" or committed theft is a question of fact and evidence. As affirmed in ***Hussein Khalid & 16 Others v. Attorney General & 2 Others [2019] eKLR***, evaluating the sufficiency and credibility of evidence is a task strictly reserved for the trial magistrate's court. 24. Additionally, this Court notes that the criminal proceedings are at an advanced stage. Prosecution witnesses have already tendered their evidence and undergone cross-examination, with the trial court currently preparing its ruling on a case to answer. To intervene at this junction, especially where a similar application before the trial court was previously dismissed, would undermine the administration of justice and interfere with the trial court's role as the trier of fact. 25. The Applicant has failed to show an arguable case to warrant leave or a stay. **IV. DISPOSITION** 1. It is my considered view that the Ex-Parte Applicant has failed to place before this Court any cogent or verifiable material to demonstrate that the criminal proceedings in ***Malindi Chief Magistrate’s Criminal Case No. E135 of 2025*** constitute an abuse of the court process or are driven by bad faith. Consequently, I find no basis to warrant the exceptional intervention of this Court by way of Judicial Review. 2. Accordingly; 3. The *Ex-Parte* Chamber Summons Application dated 16th July 2026 be and is hereby dismissed in its entirety. 4. The trial Court is directed to proceed with the delivery of its scheduled Ruling on Case to Answer on 6th August 2026. 5. The Costs of this Application are awarded to the Respondents and the Interested Party. 6. File is closed. 7. Orders accordingly. **DATED AND DELIVERED AT MALINDI THIS 31ST DAY OF JULY, 2026.** **\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_** **C. AKAIGWA** **JUDGE**