Republic v Director of Public Prosecutions & 3 others; Wambui (Ex parte Applicant) (Judicial Review E003 of 2023) [2026] KEHC 10729 (KLR) (14 May 2026) (Judgment)

Republic v Director of Public Prosecutions & 3 others; Wambui (Ex parte Applicant) (Judicial Review E003 of 2023) [2026] KEHC 10729 (KLR) (14 May 2026) (Judgment) Neutral citation: [2026] KEHC 10729 (KLR) Republic of Kenya In the High Court at Kerugoya Judicial Review E003 of 2023 EM Muriithi, J May 14, 2026 Between Republic Applicant and The Director of Public Prosecutions 1st Respondent Director of Criminal Investigations 2nd Respondent Hon. Attorney General 3rd Respondent and Josephat Warui Muriithi Interested Party and Macharia Wambui Ex parte Applicant Judgment 1.By chamber summons under certificate of urgency dated 28/7/2025, the Ex-parte Applicant seeks: 1.The an order for Judicial Review do issue by way of an order of CERTIORARI to remove into this Honourable Court the respondents decision to summon, arrest and or prosecute the applicant vide Kerugoya MCCR No 744 of 2023 and /or issues connected and related to sale of land transaction L.R No Kiine/Sagana/5654 measuring 0.20 HA & L.R No Kiine/Sagana/5762 measuring 1.62 HA vide agreements dated 15/06/2022 and/or the retainer/engagement agreement dated 20/07/2022 between the ex-parte applicant and the interested party ( his client therein). 2.An order for Judicial Review by way of an order of prohibition directed at the respondents prohibiting further summons, arrests or prosecution of the applicant vide Kerugoya MCCR No 744 of 2023 and/or issues connected and related to sale of land transaction L.R No Kiine/Sagana/5654 measuring 0.20 HA & L.R No Kiine/Sagana/5762 measuring 1.62 H A vide agreements dated 15/06/2022 and/or the retainer/engagement agreement dated 20/07/2022 between the ex-parte applicant and the interested party (his client therein). 3.The cost of this application be provided for. 2.The application is premised on the grounds on the face of it and the supporting affidavit of Titus Macharia Wambui, the Ex-parte Applicant sworn on even date. He avers that he was instructed by the Interested Party, the proprietor of L.R Nos. Kiine/Sagana/5654 and Kiine/Sagana/5762 vide an engagement agreement dated 20/7/2022 to complete, recover or revoke the sale transaction entered between him and one Taras Merchants Limited, which instructions were sufficiently and conclusively acted on. The subject engagement agreement is a lawful and valid mode of remuneration to an Advocate as governed under the Provisions of Section 45 of the Advocates Act. He has rendered account and explanatory statement on facts subject to this issue to the Interested Party as a demonstration of good faith through answer of his complaint to the Advocates Complaints Commission. 3.Notably, the Advocates Complaints Commission, after receiving the Interested Party’s complaint ruled out issues of fraud or forgery, and the demand by the Interested Party to force renegotiation of the engagement agreement is an afterthought aimed at shortchanging him his lawful bargain for the services. On 10/11/2023, he was arrested by officers of the 2nd Respondent, denied police bond without any justifiable cause and remanded, despite being an officer of the court with no previous criminal record. Regrettably, the Interested Party, instead of seeking redress through the appropriate civil mechanisms per the terms of the agreement, resorted to the criminal justice system to intimidate and coerce him into reviewing the terms of the retainer agreement. 4.The acts and omissions of the 2nd Respondent ought to be sanctioned, halted and stayed as they are arbitrary, malafides, capricious, egregious and constitute an abuse of the court process, aimed at occasioning undue hardship and tremendous prejudice to him, as they infringe the freedom of contract. According to him, the alleged offense is a concerted attempt to criminalise a dispute between an advocate and a client, which ought to have been addressed through the civil framework. Prior to his arrest, detention and arraignment in court for plea taking, he was not accorded an opportunity to either respond to the allegations or informed of the material evidence against him, thereby denying him due process and right to information, which was in breach of the Decision to charge guidelines 2019. 5.In his view, the engagement agreement amounted to a lien upon recovered consideration giving him rights and thereby conferring him the status of “Special Owner” which is protected against charges of stealing under Section 268 of the Penal Code. Further, pursuant to the provisions of Section 272 of the Penal Code, the demonstrated existence of a valid engagement agreement establishes a binding debtor/creditor relationship free from any criminal liability. This honorable court has the power and indeed a duty to halt the continuation of the criminal prosecution that is driven by extraneous matters, divorced from the goals of justice. It is also the duty of the court to ensure the process does not degenerate into tools for personal score-settling or vilification on issues not pertaining to pursuit of justice. The machinery of the criminal justice system is not to be allowed to become a pawn in personal civil feuds and individual vendetta. 6.The Ex-parte Applicant swore a further affidavit on 27/10/2025 in support of his application. 7.The 2nd and 3rd Respondents opposed the application vide a replying affidavit sworn by I.P Martin Munene on 27/8/2025. He avers that the Interested Part entered into two agreements with Dr. Njage Makanga trading as Taras Merchants Limited for the sale of L.R Nos. Kiiine/Sagana/5762 and Kiine/Sagana/5654 for a consideration of Ksh. 23,400,000. After the purchaser failed to pay the agreed purchase price, the Interested Party contracted the Ex-parte Applicant to follow up on the matter. After demand was made, the purchaser paid Ksh. 17,400,000 through the Ex-parte Applicant’s Equity Account No. 0010261543664, who paid a paltry Ksh. 3,510,000 to the Interested Party and unreasonably withheld the rest, yet his legal of Ksh. 40,000 had already been paid, thus necessitating his arrest and prosecution. 8.He has been verily advised that the complaint against the Ex-parte Applicant before the Advocates Complaints Commission is pending investigations, and not concluded as wrongly urged by the Ex-parte Applicant. Under Articles 245 and 247 of the Constitution as read with sections 28 and 35 of the National Police Service Act, the 2nd Respondent is empowered to investigate any allegations of criminal conduct, and the decision to prosecute, if any, lies solely with the Director of Public Prosecutions under Article 157 of the Constitution. The decision to summon, arrest, or investigate the Applicant falls squarely within the lawful and constitutional mandate of the 2nd Respondent and does not amount to an illegality, irrationality or procedural impropriety. The application seeks to inappropriately invoke the jurisdiction of this court to interfere with the lawful and independent exercise of investigative powers, in violation of the doctrine of separation of powers. The mere summoning or arrest of the Applicant does not violate any constitutional rights and cannot be the basis for quashing the investigative process, which is ongoing and has not culminated in a prosecutorial decision. The orders sought are contrary to the public interest and the principle of accountability and would amount to shielding the Applicant from lawful scrutiny and investigation. 9.The 2nd and 3rd Respondents filed grounds of opposition dated 1/8/2025 that; 1.The application is misconceived, premature, incompetent and an abuse of the due process of the court as it seeks to shield the Applicant from lawful investigative procedures. 2.The Applicant seeks to curtail and forestall lawful investigations undertaken by the 2nd Respondent, who is duly mandated by law to investigate any alleged criminal conduct. 3.Section 28 of the National Police Service Act grants police officers the power to investigate crimes, gather evidence, and take necessary lawful measures including arrest and interrogation in accordance with the law. 4.Section 35 of the National Police Service Act empowers a police officer to arrest a person where there are reasonable grounds to believe that such person has committed or is about to commit an offence. 5.The Applicant has not demonstrated any illegality, irrationality, procedural impropriety or ultra vires conduct on the part of the 2nd Respondent to justify the issuance of judicial review orders. 6.Under Articles 245 and Article 247 of the Constitution, the 2nd Respondent is empowered to investigate any allegations of criminal conduct and the same cannot be halted by the issuance of orders of prohibition or certiorari at an interlocutory stage without any violation of law being demonstrated. 7.The decision to prosecute, if any, lies solely with the Director of Public Prosecutions under Article 157 of the Constitution and not with the 2nd Respondent and the application is therefore misdirected and bad in law. 8.The Applicant has not demonstrated that the 2nd Respondent Has acted outside the scope of the law, in bad faith, or contrary to the Constitution or enabling statutes to warrant the interference of this Honourable Court. 9.The decision to summon, arrest, or investigate the Applicant falls squarely within the lawful and constitutional mandate of the 2nd Respondent and does not amount to an illegality, irrationality, or procedural impropriety. 10.The application seeks to inappropriately invoke the jurisdiction of this Honourable Court to interfere with the lawful and independent exercise of investigative powers, in violation of the doctrine of separation of power. 11.The Judiciary must exercise restraint and avoid encroaching upon the lawful mandate of investigative and prosecutorial agencies unless there is clear demonstration of abuse of power, bad faith, or illegality, which has not been shown in this case. 12.The mere summoning or arrest of the Applicant does not violate any constitutional rights and cannot be the basis for quashing the investigative process, which is ongoing and has not culminated in a prosecutorial decision. 13.The orders sought are contrary to the public interest and the principle of accountability and would amount to shielding the Applicant from lawful scrutiny and investigation. 14.Judicial review is concerned with the decision-making process and not the merits of the decision, and the Applicant’s grievances relate to the merits and potential outcomes, which are outside the purview of judicial review. 15.The orders sought, if granted, would have the effect of halting lawful criminal investigations and would set a dangerous precedent in undermining accountability and the rule of law. 16.The application lacks any substantive or procedural merit and ought to be dismissed with costs. 10.The Interested Party swore a replying affidavit on 22/8/2025 in opposition to the application. He avers that at the time he engaged the Ex- parte Applicant to follow up on the payment of the purchase price by the purchaser, he informed him that his legal fees would be Ksh. 40,000, which was duly paid. The retainer agreement he signed did not have a clause providing that the legal fees due to the Ex-parte Applicant would be 35% of the total consideration. He refutes signing an acknowledgement for the sum of Ksh. 5,000,000, and accuses the Ex-parte Applicant of allegedly charging 16% VAT while he is not registered and ought not to charge VAT. In his view, the issue between the Ex-parte Applicants would only be strictly civil if the retainer agreement dated 20/7/ 2022 was valid. The issue of whether or not there was stealing and forgery can only be determined by the Magistrate’s court and both the Ex- parte Applicant and him are entitled to equal treatment by the law. He denies ever seeking to vary or set aside the retainer agreement as he was not a party thereto. Submissions 11.The Ex-parte Applicant cites Dande & 3 others v Inspector General, National Police Service & 5 others (Petition 6 (E007), 4 (E005) & 8 (E010) of 2022 (Consolidated)) [2023] KESC 40 (KLR) (16 June 2023) (Judgment)More recently in Praxedes Saisi & 7 others v Director of Public Prosecutions & 2 others) (Petition 39 & 40 of 2019 (Consolidated)) [2023] KESC 6 (KLR) (Civ) (27 January 2023) (Judgment), on the need to do some merit analysis in judicial review proceedings. He urges that the provisions of Sections 45 of the Advocates Act render the alleged offence of stealing by agent baseless and void ab initio, as there existed a valid and binding retainer agreement between the parties, and cites Sheetal Kapila v Narriman Khan Brunlehner [2021] eKLR and Ahmednasir Abdikadir & Co. Advocates v National Bank of Kenya Ltd (2) [2006] [2007] eKLR. He faults the 1st Respondent for failing to furnish him with material evidence informing the decision to charge him, and cites Republic v Director of Public Prosecutions & 2 others (2018) eKLR, R. v Race Relations Board ex parte Setraraian (1976) 1 ALL ER, Msagha v Chief Justice & 7 Others (2006) eKLR and Kenya National Examinations Council v Republic ex parte Geoffrey Gathenji Njoroge (1997) eKLR. He urges that there is no material evidence to justify or sustain the trial in respect of the charges he is facing, and cites Henry Aming’a Nyabere v Director of Public Prosecutions & 2 Others; Sarah Joslyn & another (Interested Parties) [2021] eKLR, R v Inspector General of Police & 3 Others Ex Parte Lillian Wangari & 5 Others [2017] eKLR, Peter Ngunjiri Maina v DPP & 2 Others (2017) eKLR and R v DPP & 2 Others Ex parte Nomoni Saisi (2016) eKLR. 12.The 2nd and 3rd Respondents beseech the court to refrain from interfering with ongoing investigations and allow the police service to discharge its functions without undue obstruction, as guided by International Trade Administration Commission v SCAW South Africa (Pty) Ltd [9]. They submit that Judicial Review is a remedy of last resort, and fear of arrest/prosecution is not a ground therein. They urge that nothing bars criminal and civil proceedings to run concurrently by dint of Section 193 A of the Criminal Procedure Code, Republic v Attorney General ex-parte Arap Ngeny HCC APP NO. 406 of 2001. They urge that the power to quash police investigations amounts to exonerating a suspect before conclusion of investigations, and it should be exercised with extreme care and caution. They urge that no evidence of abuse of power, illegality, or infringement of rights has been placed before this court, and pray for the dismissal of the application with costs. 13.The Interested Party urges that the 2nd Respondent is empowered by the National Police Service Act to investigate crimes, record statements, summons, witnesses, and cites Director of Public Prosecutions and 2 Others Ex-parte Harold Dayan Dande and 2 others [2018] KEHC 9432 (KLR). He urges that his claim has both a criminal and civil aspects, and there is no bar to both matters proceeding simultaneously, and cites Kanini Kiti Mwengi and two others v Director of Public Prosecution and 2 others; Paul Mwai Interested Party [2021] KEHC 8679 (KLR). He faults the Ex-parte Applicant for failing to demonstrate either being subjected to an unfair infringement of his Constitutional rights, and prays for the dismissal of the application with costs. Analysis and Determination 14.Whereas there can be no doubt that the field of investigations of criminal offences is exclusively within the domain of the police and the Respondents, this Court has the powers to halt such a process if the intended criminal proceedings are oppressive, an abuse of the court process and amount to a breach of fundamental rights and freedoms. 15.It has further been held that an oppressive or vexatious investigation is contrary to public policy and that the police in conducting criminal investigations are bound by the law and the decision to investigate a crime (or prosecute in the case of the DPP) must not be unreasonable or made in bad faith, or intended to achieve ulterior motive or used as a tool for personal score-settling or vilification. The court has inherent power to interfere with such investigation or prosecution process. (See Ndarua v R [2002] 1 EA 205). 16.This Court in Christina Gakuhi Kubai v DPP (2016) eKLR has on Prosecutorial Mandate and Abuse of the Legal Process discussed the limit of the State’s Prosecutorial powers. 17.In Republic v Chief Magistrate’s Court at Mombasa Ex Parte Ganijee & Another [2002] eKLR, the court (P. Waki J.) cited with approval the decision in Vincent Kibiego Saina v The Attorney-General where Kuloba, J held that:“…No one is allowed to use the machinery of justice to cause injustice and no one is allowed to use criminal proceedings to interfere with a fair civil trial. If a criminal prosecution is an abuse of the process of the court, oppressive or vexatious, prohibition and/or certiorari will issue and go forth...When a remedy is elsewhere provided and available to person to enforce an order of a civil court in his favour, there is no valid reason why he should be permitted to invoke the assistance of the criminal law for the purpose of enforcement. For in a criminal case a person is put in jeopardy and his personal liberty is involved. If the object of the appellant is to over-awe the respondent by brandishing at him the sword of punishment thereunder, such an object is unworthy to say the least and cannot be countenanced by the court... In this matter the interested party is more actuated by a desire to punish the applicant or to oppress him into acceding to his demands by brandishing the sword of punishment under the criminal law, than in any genuine desire to punish on behalf of the public a crime committed. The predominant purpose is to further that ulterior motive and that is when the High Court steps in...” 18.Comparatively in Sylvester Gaitano Odhiambo v Republic [2022] eKLR, the court (G.V Odunga J. as he then was) stated;“ 56.It is my view however that as opposed to where the prosecution has no evidence at all, in which event an order of prohibition may issue, the court will not halt a prosecution simply because the court is of the view that the evidence would not in all probability lead to a conviction. To do that would, as I have stated hereinabove, amount to this court stepping into the shoes of the trial court and usurping the powers of the trial court. Similarly, it is not for this Court to stop the DPP in his tracks simply because the Court believes that the DPP ought to have done better. The constitutional discretion given to the DPP ought not to be lightly interfered with especially if on the evidence in his possession if true may well sustain a prosecution. Trial courts are better placed to consider the evidence and decide whether or not to place an accused on their defence and even after placing the accused on his defence, the Court may well proceed to acquit the accused. Our criminal process also provides for a process of an appeal where the accused is aggrieved by the decision in question. Apart from that there is also an avenue for compensation by way of a claim for malicious prosecution.” 19.The 2nd Respondent has given a detailed account of how a report was made to the police by the Interested Party, thorough investigations were undertaken, the evidence was collected and correlated, which culminated in the arrest and prosecution of the Ex-parte Applicant. 20.In rejoinder, the Ex-parte Applicant posits that the institution of the criminal proceedings at the blatant disregard of the pending proceedings before the Advocates Complaints Commission, notwithstanding the existence of a valid retainer agreement duly executed by the Interested Party, is a nullity ab initio. 21.Whilst the Interested Party acknowledges executing a retainer agreement wherein he paid the Ex-parte Applicant Ksh. 40,000 for his services, he categorically denies executing the retainer agreement dated 20/7/2022, as the contents therein are substantially different from the one he signed. The Interested Party further denies receipt of Ksh. 5,000,000 from the Ex-parte or executing the Acknowledgement thereof dated 14/10/2022. There are equally allegations of forgery of the signature contained in the Respondents’ supplementary affidavit sworn by the Vincent Mamba, the 1st Respondent’s senior Prosecution Counsel on 5/2/2024. 22.The Ex-parte Applicant’s letter dated 21/1/2023 to the 2nd Respondent is proof on a balance of probabilities that he was accorded reasonable time to respond to the complaint before his subsequent arrest on 9/11/2023. 23.The Respondents have established that the Ex-parte Applicant unlawfully levied 16% VAT notwithstanding that he was not duly registered for that obligation under the law, which amounted to fraud, illegality and unjust enrichment. 24.The Respondents have established that the proceedings before the Advocates Complaints Commission are still ongoing, and not concluded as wrongly alluded to by the Ex-parte Applicant. Suffice to state, section 193 A of the Criminal Procedure Code permits the institution of concurrent civil and criminal proceedings. 25.Section 45 of the Advocates Act is succinctly clear that the validity of a retainer agreement is contingent upon its execution of the client as follows:“Subject to section 46 and whether or not an order is in force under section 44, an advocate and his client may— (a) before, after or in the course of any contentious business, make an agreement fixing the amount of the advocate’s remuneration in respect thereof; (b) before, after or in the course of any contentious business in a civil court, make an agreement fixing the amount of the advocate’s instruction fee in respect thereof or his fees for appearing in court or both; (c) before, after or in the course of any proceedings in a criminal court or a court martial, make an agreement fixing the amount of the advocate’s fee for the conduct thereof, and such agreement shall be valid and binding on the parties provided it is in writing and signed by the client or his agent duly authorized in that behalf.” 26.Section 45 (2) of the Advocates Act grants the court jurisdiction to set aside or vary a retainer agreement if it is proved that is harsh and unconscionable, exorbitant or unreasonable. 27.Here, the Interested Party has vehemently denied either executing the retainer agreement/engagement letter dated 20/7/2022 or the acknowledgement dated 14/10/2022. This court is minded that the allegations of fraud and forgery can be properly addressed by the trial court through the criminal justice system. 28.In John Karungai Nyamu & Another v Muu & Associates Advocates [2008] KEHC 3197 (KLR), the court (Lesiit J, as she then was) expounded that:“The advocate has no right under any law to hold monies which have come to him for onward transmission to his client, as lien, at least, no such law has been cited to the court. What the Advocate is doing by holding onto the Plaintiff’s monies is irregular, and the court cannot condone the same.” 29.Similarly in Waruhiu K’owade & Ng’ang’a Advocates v Mutune Investment Limited [2016] KECA 835 (KLR), the Court of Appeal expressed thus:“To allow advocates to retain client funds for no reason at all would be a travesty of justice and would be an abuse of the fiduciary trust given and by extension would amount to conversion and criminal activity. It would amount to deceit and unjust enrichment and ultimately, would erode public confidence in the administration of justice.” 30.It is not for this Court, as a Judicial Review Court, to inquire into the paucity or otherwise of the evidence to be presented before the trial court, because that would be tantamount to usurpation of the role of the fact finder in determining the merits of the charges. 31.The Court finds that the Ex-parte Applicant have failed to prove that his prosecution was predominantly instigated by malice or ulterior motive rather than the genuine desire to keep the society free from crime. 32.The Court is persuaded that justice will be done if the Ex-parte Applicant is properly and finally tried by the fact finding court, where his fundamental rights as entrenched under Article 50 of the Constitution can be fully actualized. The Court does not find any reason to exercise its judicial review jurisdiction to halt the criminal proceedings pending before the trial court. ORDERS 33.Accordingly, for the reasons set out above, the Court finds the application dated 28/7/2025 is without merit and it is dismissed. 34.There shall be no orders as to costs.Orders accordingly. DATED AND DELIVERED THIS 14TH DAY OF MAY 2026.EDWARD M. MURIITHIJUDGEAppearances:Mr. Macharia Wambui for Applicant.Mr. Maalim for Mr. Kiongo for the Respondents.Ms. Mwikali for the Interested Party.