https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8106

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT KAKAMEGA** **JUDICIAL REVIEW DIVISION** **JUDICIAL REVIEW APPLICATION NO. E010 OF 2022** **IN THE MATTER OF AN APPLICATION FOR JUDICIAL REVIEW ORDERS OF CERTIORARI, PROHIBITION AND MANDAMUS** **IN THE MATTER OF THE ADVOCATES ACT (CAP 16) AND FAIR ADMINISTRATIVE ACTION ACT NO. 4 OF 2015** **BETWEEN** **REPUBLIC…………………………………………………………………………….APPLICANT** **EX PARTE:** **CHARLES ANYANGA MALALAH……………………………….……EX PARTE APPLICANT** **AND** **DIRECTOR OF PUBLIC PROSECUTIONS………………………………….1ST RESPONDENT** **COUNTY CRIMINAL INVESTIGATIONS OFFICER………………………2ND RESPONDENT** **CHIEF MAGISTRATE’S COURT KAKAMEGA……..…………….…………3RD RESPONDENT** **ALI AMAN KINGI……………………………………...……….…………..INTERESTED PARTY** ***JUDGMENT*** 1. The Ex Parte Applicant seeks to quash and prohibit criminal proceedings arising from allegations of fraud in a land transaction involving L.R. No. NORTH WANGA/KHOLERA/937. 2. The Respondents oppose the application, asserting that the prosecution is lawful and grounded on investigations disclosing criminal offences. **Issues for determination.** The Court distils the following issues: 1. Whether the DPP acted ultra vires, irrationally, or in abuse of power. 2. Whether the matter is purely civil and not criminal. 3. Whether Judicial Review orders are available in the circumstances. 4. Whether the prosecution violates constitutional and statutory standards. **Analysis and determination.** 1. **Whether the dpp acted within his constitutional and statutory powers** 2. The Applicant argues that the prosecution is improper, malicious, and outside the constitutional mandate of the DPP. 3. Article 157(6) of the Constitution grants the DPP power to institute criminal proceedings. However, this discretion must be exercised lawfully. 4. In **Meixner & Another v Attorney General [2005] 2 KLR 189**, the Court held: *“****The Attorney General (now DPP) has discretion to institute criminal proceedings and courts will only interfere where that discretion is exercised in bad faith or for an improper purpose.”*** 1. Similarly, in **Republic v Director of Public Prosecutions ex parte Meridian Medical Centre Ltd [2015] eKLR,** ***the Court stated that prosecutorial discretion is only challengeable where it is shown to be abused or exercised in violation of the Constitution.*** 2. In the present case, investigations disclosed allegations of: 3. impersonation, 4. forgery of land documents, 5. fraudulent transfer of funds, 6. and possible conspiracy. 7. These are matters clearly within the prosecutorial mandate of the DPP. 8. The Court finds that the DPP acted within constitutional and statutory powers, and no abuse of discretion has been demonstrated. 9. **Whether the criminal proceedings amount to an abuse of court process** 10. The Applicant contends that the prosecution is intended to pressure him and convert a civil dispute into a criminal case. 11. Abuse of process occurs where proceedings are instituted for ulterior motive or without factual foundation. 12. In **Kuria & 3 Others v Attorney General [2002] 2 KLR 69*,*** the Court held: ***“The Court has power to stop prosecution where it is oppressive or instituted for ulterior motives.”*** 1. Further, **in Republic v Director of Public Prosecutions & Another ex parte Kaman/Agro Limited [2016] eKLR**, it was stated: ***“The Court will only intervene where prosecution is instituted in bad faith or is an abuse of process.”*** 1. In the present case, the Respondents have demonstrated that the investigations were conducted, multiple suspects were identified, and funds allegedly passed through accounts linked to the Applicant. 2. No evidence of malice or improper purpose has been shown. 3. The Court finds that the prosecution is not an abuse of court process. 4. **Whether the dispute is purely civil and not criminal** 5. The Applicant argues that the matter arises from a contractual land sale agreement and should be handled as a civil dispute. 6. It is settled law that civil remedies do not bar criminal proceedings where criminal elements are disclosed. 7. **In Republic v Chief Magistrate’s Court Mombasa ex parte Ganijee & Another [2002] eKLR*,*** the Court held: ***“The existence of a civil remedy does not bar criminal proceedings arising from the same facts.”*** 1. **In Republic v Commissioner of Police & Another ex parte Michael Monari & Another [2012] eKLR**, it was stated: ***“Where reasonable suspicion of a crime exists, the police are entitled to investigate and recommend prosecution.”*** 1. Additionally, **in Hassan Ali Joho v Inspector General of Police & 3 Others [2017] eKLR,**the Court emphasized that courts should not interfere where facts disclose criminal elements. 2. In this case, allegations include forgery of title documents, impersonation of a seller, and transfer of funds through suspect accounts. These are clearly criminal in nature. 3. The Court finds that the matter is not purely civil but discloses criminal offences worthy of trial. 4. **Whether this court should interfere with the prosecution through judicial review orders** 5. The Applicant seeks orders of certiorari to quash the decision of the 1st respondent to charge and prosecute him in connection with the impugned land transaction. 6. An order of certiorari issues to quash a decision already made where it is demonstrated that the decision was reached without jurisdiction, in excess of jurisdiction, in breach of the rules of natural justice, or was otherwise unlawful. This was reinstated by the Court of Appeal in the case of **Kenya National Examination Council Versus Republic Exparte Geofrey Gathenji Njoroge & Others {1997} eKLR** In **Municipal Council of Mombasa v Republic & Umoja Consultants Ltd [2002] eKLR*,*** the Court of Appeal held: ***“Judicial review is concerned with the decision-making process, not the merits of the decision.”*** 1. **In Pastoli v Kabale District Local Government Council [2008] 2 EA 300**, it was held that intervention is only justified where there is illegality, irrationality, and procedural impropriety. 2. *Further* **In Suchan Investment Ltd v Ministry of National Heritage [2016] eKLR**, the Court added proportionality but maintained restraint in interfering with statutory mandates. 3. In this case the investigations were conducted, charges are founded on evidence, and no breach of fair process is demonstrated. 4. The applicant further seeks an order of prohibition to restrain the respondents from continuing with the criminal proceedings before the chief magistrates court. 5. The nature and scope of an order of prohibition was explained in **Kenya National Examination Council Versus Republic Exparte Geofrey Gathenji Njoroge & Others {1997} eKLR**where the court stated that prohibition looks to the future.it forbids a tribunal or public body from continuing proceedings in excess of jurisdiction or contrary to the law. 6. Unlike certiorari which quashes a decision already made, prohibition prevents an unlawful action from continuing. 7. The court has carefully examined the material before it and finds no evidence that the prosecution was commenced for an ulterior motive. The respondent acted upon complaints made by the interested party, conducted investigations and formed a view that offences known to law have been committed. 8. The Court finds that no grounds exist to warrant judicial review intervention. 9. Having addressed all issues, the Court finds: 10. The DPP acted within lawful mandate. 11. The prosecution is not an abuse of process. 12. The dispute discloses criminal offences, not merely civil liability. 13. Judicial Review jurisdiction has not been properly invoked. 14. The Court reiterates that it will only interfere with prosecutorial discretion in the clearest of cases. 15. Allegations of fraud and forgery must be tested at trial and not pre-empted through judicial review. 16. Accordingly, the Court orders: 17. The Notice of Motion dated 18th October 2022 is dismissed. 18. Orders of certiorari, prohibition, and mandamus are declined. 19. The criminal proceedings before the Chief Magistrate’s Court Kakamega shall proceed to full hearing. 20. Each party shall bear own costs. 21. Right of Appeal 14 days explained. **DATED, SIGNED AND DELIVERED IN OPEN COURT AT KAKAMEGA THIS 8TH DAY OF JUNE, 2026.** **S.N MBUNGI** **JUDGE** **In the presence of:-** **CA:** Zilda/Velma Ms. Kiu for ODPP Present. Applicant absent though a name Malala is in the screen. Other parties absent. Mr. Mukoya holding brief for the complainant/interested party present online. Innocent Ondieki is seen in the platform but is not talking.