[2025] KEHC 6206 (KLR)

Republic v Inspector General of Police & 2 others; Makau & 4 others (Exparte) (Judicial Review Miscellaneous Application E018 of 2024) [2025] KEHC 6206 (KLR) (Judicial Review) (16 May 2025) (Judgment)

Neutral citation: [2025] KEHC 6206 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Judicial Review

Judicial Review Miscellaneous Application E018 of 2024

JM Chigiti, J

May 16, 2025

Between

Republic

Applicant

and

Inspector General of Police

1st Respondent

Director of Public Prosecutions

2nd Respondent

Attorney General

3rd Respondent

and

Joseph Makau

Exparte

David Walunya Ongare

Exparte

Marrian Mutete Kioko

Exparte

Lynette Cheruiyot

Exparte

Isaac Kimitei

Exparte

Judgment

1. On the 1st February 2024 a Gas explosion incident occurred at Mradi in Embakasi leading to the arrest of the Applicants on the 6th of February 2024.

2. The Exparte Applicants were remanded at Embakasi police station and Capitol Hill police station before being arraigned in court before the Chief Magistrates Court at Nairobi who ordered that they be detained at Embakasi Police Station in Nairobi for a period of 21 days pending completion of investigations.

3. Being aggrieved by the foregoing, the Applicants have moved the court for orders that: -1. That this Court be pleased to issue an Order of Prohibition as against the Director of Criminal Investigations and the Director of Public Prosecutions to prohibit the further incarceration, detention and charging of the Exparte Applicants herein.2. That this Court be pleased to issue an Order of Prohibition as against the Director of Criminal Investigations and the Director of Public Prosecutions to prohibit the continuation of the miscellaneous criminal proceedings in Nairobi Chief Magistrates at Milimani Cr E410 of 2024 (Rep vs John Makau and 3 Others) and Nairobi Chief Magistrates at Milimani Cr E539 of 2024 (Rep vs Isaac Kimitei).3. That this Court be pleased to issue an Order of Certiorari to bring into this Court, the decision of the Director of Criminal Investigations to detain the Exparte Applicants, and be quashed by this honourable Court.4. That this Court be pleased to issue a Declaration to the effect that the Exparte Applicants are protected by law from prosecution arising from their actions or decisions applied in their official capacity within the course of their employment under the Environmental Management and Coordination Act.5. That costs of this Application be met by the respondents.6. Any other orders this honourable court may deem fit and just to grant.

The Applicants case 4. According to Joseph Makau ,who is a Senior Environment Officer with the National Environment Management Authority stationed at the Headquarters, within South C in Nairobi County he was arrested on 4th February 2023, at around 10 pm at his house and driven to Embakasi Police station.

5. On 5th February 2024 he was arraigned in Milimani Cr. Misc App. E410 of 2024 on the 6th of February 2024 with the 2nd and 3rd Applicants before the Senior Principal Magistrate when the prosecution in its application dated 6th February 2024 sought custodial orders for 21 days at the Embakasi Police Station within Nairobi County under Section 36A of the Criminal Procedure Code and Article 49 of the Constitution which custodial orders for 21 days were issued.

6. He was made to understand that he was a person of interest in the decision of his employer, NEMA, to issue an Environmental Impact Assessment Licence (EIA) which role he played in the course of his duties.

7. He argues that his statutory immunity from criminal liability has been breached given that his conduct of the matter is limited by virtue of the execution of my duties under employment only.

8. It is the Applicant’s case that Section 18 of the Environmental Management and Coordination Act shields from personal liability on actions taken in the course of employment. It provides that;“No matter or thing done by a member of the Authority or any officer, employee or agent of the Authority shall, if the matter or thing is done bona fide for executing the functions, powers or duties of the Authority, render the member, officer, employee or agent or any person acting on his directions personally liable to any action, claim or demand whatsoever.”

9. Section 66 of the Environmental Management and Coordination Act shields me from personal liability in all cases of issuance of an Environmental Impact Assessment Licence.“66. Protection in respect of an Environmental Impact Assessment Licence(1)No civil or criminal liability in respect of a project or consequences resulting from a project shall be incurred by the Government, the Authority or any impact assessment study, evaluation or review report or grant of an environmental impact assessment licence or by reason of any condition attached to such licence.”

10. They submit that The 1st and 3rd respondents have not filed any response to this judicial review proceeding.

11. They further submit that The 2nd respondent Grounds of Opposition are irrelevance and that there is no substantive response.

12. The 2nd respondent has been sued pursuant to its mandate under Article 156 of the Constitution and the enabling Statute being the ODPP Act given that The ODPP plays the role of approving charge sheets towards charging.

13. They submit that the decision (s) of the Exparte Applicants was a collective decision of the National Environment Management Authority (NEMA) to issue an Environmental Impact Assessment (EIA)License and that this decision can only be challenged via an appeal to the National Environment Tribunal (NET) as required by Section 125 of EMCA and not personal actions against the various actors. Therefore, the arrest and incarceration were not in accordance to the law.

14. It is their submission that the applicants acted in the execution of the Authority’s mandate as issued under Section 9 and Section 63 of the Environment Management and Co-ordination Act, No. 9 of 1999“The Authority may, after being satisfied as to the adequacy of an environmental impact assessment study, evaluation or review report, issue an environmental impact assessment licence on such terms and conditions as may be appropriate and necessary to facilitate sustainable development and sound environmental management.”

15. They submit that they were acting towards upholding environmental laws and regulations and prosecuting them could compromise the enforcement of environmental protection measures.

16. They submit as public officers, including those at NEMA, must have the autonomy to perform their roles without undue influence or restrictions that could affect their performance and the enforcement of regulations.

17. Reliance is placed in the case of Nderitu v. Attorney General [2017] eKLR where the court emphasized the importance of upholding the rule of law and protecting the rights of employees to execute their duties without unlawful interference. It highlights that any constraints imposed on employees performing their official functions could undermine their ability to enforce laws effectively.

18. They also rely in Republic v. Kenya National Examination Council ex parte Gilbert N. Gathenji & 9 others [1997] eKLR, where the Court dealt with issues related to the independence and autonomy of public officers. The ruling reinforced that public officials must be allowed to execute their duties with the necessary freedom to ensure that their actions are not compromised by external pressures or constraints.

19. This principle was further reiterated in Public Service Commission v. Kenya National Union of Teachers [2013] eKLR where the rights of public servants to execute their duties without unwarranted restrictions. It underscores the need for an environment where employees can perform their functions freely to uphold public interest and regulatory compliance.

20. The Environmental Management and Coordination Act (EMCA) section 18 provides that;“No matter or thing done by a member of the authority or any officer, employee or agent of the authority shall, if the matter or thing is done bona fide for executing the function, powers or duties of the authority, render the member, officer, employee or agent or any person acting on his directions personally liable to any action, claim or demand whatsoever.”Section 66 provides that; protection in the respect of an environmental impact assessment license(1)No civil or criminal liability in respect of the project or consequences resulting from a project shall be incurred by the government, the authority or any impact assessment study, evaluation or review report or grant of an environmental impact assessment license or by reason of any condition attached to such license.”

21. In Kielley v. Carson [32] the Privy Council passed the resolution that: “The only privilege given by the common law, was a power to protect itself from all impediments to the due course of its proceedings, and to take what measures were necessary to secure the free exercise of its legislative functions...”

22. The High Court in Republic v. National Police Service Commission Exparte [2014] eKLR considered the immunity provided to public officers, focusing on the principle that such protections are necessary to allow them to carry out their functions without undue interference. The court emphasized that while public officers are granted certain immunities, these are not absolute and do not preclude accountability but are intended to ensure the effective performance of their duties.

23. Further, the Court of Appeal reinforced the principle that legal protections for public officers are aimed at ensuring they can execute their roles efficiently in Civil Appeal No. 107 of 2011 - Gikonyo v. Public Service Commission [2012] eKLR dealt with issues surrounding the protection of public officers and the extent of their legal immunities. The court clarified that while public officers may enjoy certain legal protections, these are meant to enable them to perform their duties effectively rather than to shield them from legal liability.

24. In Kenya National Commission on Human Rights v. Attorney General & Another [2018] eKLR the High Court in interpreting immunities granted to public officials and how these should be balanced with accountability. The Court acknowledged that such immunities are necessary to prevent undue influence on the performance of official duties but must be aligned with principles of accountability and transparency.

25. They also rely on the Republic v. The Chief Justice & Another Ex Parte Kinyua [2019] eKLR where the High Court addressed the scope of legal immunities and their role in protecting the functionality of public offices. The court ruled that immunities are crucial for the proper execution of duties but are not intended to obstruct justice or shield public officers from accountability. This case heightens the principle that legal immunities are essential for enabling effective performance of duties, echoing the sentiments expressed in Kielley v. Carson.

26. In complete violation of Article 49 of the Constitution they submit that the Respondents failed to inform them in a language that they understand, of the reasons for their arrest and ensure their right to legal representation.

27. The respondents acted malafides and in particular given thata.The 1st Exparte applicant, Mr. Joseph Makau, was arrested on the 2nd of February at 10. 00 pm from his residence and whisked to Embakasi Police Station and denied the right to counsel until he was availed in court on the 6th of February 2024. b.The 2nd Exparte applicant, David Ongare and 3rdApplicant, Marrian Kioko, voluntarily availed themselves to the investigating officer at Embakasi on the 5th of February 2024 where they were detained and denied right to counsel.c.The same applies to Ms. Lynnet Cheruiyot and Mr. Isaack Kimitei the 4th and 5th Exparte Applicants in this matter.

28. Under Article 49(1)(c) of the Constitution, detainees have the right to access their lawyer. This right ensures that individuals are not left without legal representation during their detention and investigation period. That the principle that access to legal counsel is a fundamental right enshrined in the Constitution of Kenya. Detaining an individual without providing access to a lawyer constitutes a breach of this right and undermines the fairness of the legal process.

29. In the case of Republic v. Ouma [2020] eKLR where the court reviewed whether the denial of legal representation during detention constituted a violation of constitutional rights.

30. The High Court affirmed that every individual in custody has the right to legal representation, and the failure to provide such access can render the detention unlawful and infringe upon the detainee's right to a fair trial.

31. The High Court in Republic v. The Director of Public Prosecutions Exparte Michael Monari & Another [2014] eKLR dealt with the issue of whether the DPP acted within lawful authority in initiating criminal proceedings against certain individuals. The court emphasized that the DPP must act based on sufficient evidence and adhere to legal procedures.

32. In the case of Public Service Commission v. Kenya National Union of Teachers [2013] eKLR the court on the protections available to public officers and the procedures required before taking legal action against them. The court affirmed that due process must be observed, and any deviation from required procedures can affect the legality of the charges.

33. In Betty Jemutai Kimeiywa v Republic (2018) eKLR, Murithi J considered the reasons given by the police to be not compelling enough for the precharge, detention of the respondent. He said ‘I do not find that the police offered good reasons for the continued detention of the arrested person because the matters they used to justify the detention being aspects of the investigation, by taking witness statements, obtaining data on the Applicants cell phone, and securing a forensic report on cyber-crime aspects of the case are all things that could have been accomplished even with the person being out of custody.

34. It is their case that the prosecution did not provide any compelling reasons for the continued detention of the suspects and thus violated the Constitution and did not provide charge or holding charge and which led to another illegality. It would seem that the plea court was also not acting rationally or independently.

35. They submit that they were also not given a fair administrative action that leads to irrationality, inefficient and procedurally unfair contrary to Article 47 of the Constitution of Kenya which states that;“1)Every person has the right to administrative action that is expeditious, efficient, lawful and procedurally fair.2)If a right or fundamental freedom of a person has been or is likely to be adversely affected by the administrative action, the person has to be given written reasons for the action.”

36. They submit that the incarceration of the Exparte Applicants was reasonably illegal since it interfered with their fundamental rights not to be detained as provided for in the EMCA act which reasonably amounts to illegality in that no written reason was provided. The 21 days extension given was not given justiciably.

37. They submit that the prosecution application for custodial orders did not adduce any evidence of what could be interpreted as criminal negligence, breaching statutory immunity of the Applicants from a criminal or civil liability. No charge or holding charge was also availed.

On the issue of costs 38. They submit that Section 27 of the Civil Procedure Act vests this Court with discretion to make an order for costs of and incidental to suits.

39. They submit that the respondents should bear the costs of this Judicial Review.The actions of the respondents were very oppressive and illegal.

Respondents Case; 2nd Respondent’s Grounds of Opposition 40. On its part the 2nd Respondent filed and relies on the grounds of opposition that: -1. The Application is premature as the DPP is yet to receive an investigation file from the Inspector General of Police with a view to exercising his prosecutorial mandate under Article 157 of the Constitution.2. The Applicants have not demonstrated any illegality, irrationality or procedural impropriety by the Director of Public Prosecutions to warrant the grant of the orders sought.3. Where acts of a criminal nature are brought to the DPP’s knowledge, it is incumbent upon the DPP to ensure that the allegations are thoroughly investigated, and appropriate action taken. In doing so, the DPP is not subject to the direction and control of any person, body or authority.4. The Director of Public Prosecutions in the discharge of his mandate is only subject to the Public Interest, the interests of the wider administration of justice and the need to avoid or prevent the abuse of the legal process.5. The prayer seeking to prohibit the continuation of Milimani Chief Magistrates Court MCCRMISC/E410/2024, Republic vs Joseph Makau and David Walunya Ong'are and 2 Other(s) and MCCRMISC/E539/2024 Republic vs Isaac Kimetei is moot as the said files have already been concluded and closed. Accordingly, there is no longer a justiciable matter in that respect requiring the intervention of this honourable court.6. The question on immunity of the Applicants from sanctions is a triable issue that the trial court, if called upon, would have the jurisdiction to address itself to. Consequently, the issue of immunity is not yet ripe for justiciability.7. It is in the public interest that the inspector general of police investigates any allegation of criminal misconduct in accordance with the law. The Applicants have not demonstrated any illegality or procedural impropriety by the Inspector General of Police in the conduct of the investigations in respect of the subject of this Application.8. Institution of Judicial Review proceedings is not the proper forum to raise concerns over dissatisfaction with a ruling or decision of the court. The Applicants should have sought a Revision of the orders instead.9. The correctness, veracity and weight of the evidence gathered by the DCI and independently evaluated by the DPP can only be assessed and tested by the trial court which is best equipped to deal with the quality and sufficiency of evidence.10. The Applicants have not shown that the DPP has exercised his powers contrary to Article 157(11) of the Constitution nor have they shown that the Inspector General of Police has violated any provisions of the Constitution or the law.11. There is no allegation of either bias or incompetence on the part of the subordinate court which has the constitutional and statutory mandate to hear and determine the criminal matter before it; and that the court is presumed to be impartial and no evidence has been presented to rebut that legal presumption.12. There is no basis for the Applicant to presume that the court will not have control of its proceedings and ensure that the Applicants rights are protected. In any case any rate, a claim for malicious prosecution is contingent on acquittal of an accused person and is actionable in private law.13. The Application seeks to preempt the presentation of evidence and is presumptive of the decision of the 2nd Respondent and the findings by the trial court.14. The Application seeks to give the Applicants immunity from criminal prosecution for actions undertaken in violation of the law. Such immunity is not provided for under the Constitution and the applicable law and would in any event be discriminatory based on status.15. The court’s power to prohibit prosecution should be exercised sparingly and in the clearest of cases as prosecutorial decisions should be left to the DPP to determine on the basis of evidence and public interest. The court should remain the neutral arbiter and restrain itself from making orders that would unnecessarily fetter the DPP’s constitutional mandate, the onus is on the Applicants to establish ultra vires and irrationally by the DPP.16. It is in the public interest that the Respondents be allowed to exercise their constitutional mandate to their logical conclusion in accordance with the Constitution and the law. The court can only interfere with or interrogate the actions of the Respondents where there is contravention of the Constitution, the law, rules of natural justice or breach of fundamental rights.17. The 2nd Respondent prays that the Application dated 6th March 2024 be dismissed with costs.The other Respondents did not file any responses.Analysis and DeterminationFollowing are the issues for determination;1. Whether the Applicants enjoy immunity from prosecution.2. Whether the Applicants have made a case for the grant of the orders sought.3. Who shall bear the costs?

Whether the Applicants enjoy immunity from prosecution. 41. The Applicants are Senior Environment Officer with the National Environment Management Authority.

42. On the 1st February 2024 a Gas explosion incident occurred at Mradi in Embakasi.

43. The ODPP Criminal initiated charges against them in Milimani MCCRMISC/E410/2024 R vs Joseph Makau and 3 Others and Milimani MCCRMISC/E539/2024 R vs Isaac Kimitei and Makadara MCRMISC/E98/2024 R vs Lynet Cheruiyot.

44. The decision (s) by the Exparte Applicants to issue an Environmental Impact Assessment (EIA)License was an official collective decision of the National Environment Management Authority (NEMA).

45. In so doing, the Applicants acted in their capacity as employees of the National Environment Management Authority (NEMA) in the execution of the Authority’s mandate as provided for under Section 63 of the Environment Management and Co-ordination Act, No. 9 of 1999 which stipulates that;“The Authority may, after being satisfied as to the adequacy of an environmental impact assessment study, evaluation or review report, issue an environmental impact assessment licence on such terms and conditions as may be appropriate and necessary to facilitate sustainable development and sound environmental management.”

46. The Environmental Management and Coordination Act (EMCA) Section 18 provides that,“No matter or thing done by a member of the authority or any officer, employee or agent of the authority shall, if the matter or thing is done bona fide for executing the function, powers or duties of the authority, render the member, officer, employee or agent or any person acting on his directions personally liable to any action, claim or demand whatsoever.”Section 66 provides that protection in the respect of an environmental impact assessment license(1)No civil or criminal liability in respect of the project or consequences resulting from a project shall be incurred by the government, the authority or any impact assessment study, evaluation or review report or grant of an environmental impact assessment license or by reason of any condition attached to such license.”

47. Civil Appeal No. 107 of 2011 - Gikonyo v. Public Service Commission [2012] eKLR dealt with issues surrounding the protection of public officers and the extent of their legal immunities. The court clarified that while public officers may enjoy certain legal protections, these are meant to enable them to perform their duties effectively rather than to shield them from legal liability.

48. In the case of The Director of Public Prosecutions v Kiptoo & 6 others (Criminal Revision E1550 of 2024) [2024] KEHC 16692 (KLR) (Crim) (20 December 2024) (Ruling) The court held that;“The Director of Public Prosecutions is the officer in law mandated to initiate Criminal Prosecutions in Kenya under Article 157 of the Constitution. He enjoys that exclusive authority until parliament otherwise decides in line with Article 157 (12) of the Constitution.”The creation of the Independent Director of Public Prosecutions was not by accident by the framers of our Constitution. Kenya was emerging from a one -party dictatorship under which the violation of human rights through politically engineered prosecutions was prevalent. Kenyans will recall with nostalgia the harrowing tales of the Nyayo torture chambers by those who survived to tell their story.The framers of our Constitution through a deliberate act after wide consultations created the independent office of the DPP who would not sit as a member of the cabinet or parliament in order to cushion the holder thereof from political interferences in the making of the decision to prosecute.In exercising that power, the DPP under Article 157(10) of the Constitution is not subject to the direction or control of any -body or authority not even the courts. However, the courts in appropriate cases can intervene to check the excesses of the DPP once an aggrieved party presents a case demonstrating such abuse. See Ngome vs DPPand Another; Ethics and Anti-Corruption Commission (2024) eKLR.

49. The Director of Public Prosecutions is expected to make independent decisions about who is to be prosecuted and for what offence and in the making of that decision to act within the law.

50. In the exercise of that power, the Director of Public Prosecutions must avoid the abuse of the Criminal Justice process and protect the public interest. The Director of Public Prosecutions as a duty to ensure that the interests of justice are not compromised in the course of a prosecution.

51. The respondents did not tender any evidence to counter or contradict the Applicants’ case as buttressed under the above provisions of the EMCA.

52. The ground of opposition do not address the concerns around the statutory immunity that the Applicants enjoy under Section 66 of The Act.

53. This court is of the informed view that the Applicant has proven that they enjoy statutory immunity and the decision to charge the Applicants in the circumstances amount to an illegality that offends Section 66 of The Environmental Management and Coordination Act (EMCA).

54. The court is under a duty to ensure that a criminal trial that is predicated on an illegality does not proceed once the illegality is identified under Article 10 of the Constitution in the spirit of upholding and promoting the rule of Law.

55. That flows in the instant case. An Order of Prohibition against the Respondents to prohibit the continuation of the illegal criminal proceedings commends itself and I so order.

56. The Applicants are also aggrieved that they were over detained upon arrest.

57. Article 49(1)(f)(i) stipulates that an arrested person has the right to be brought before a court as soon as reasonably possible, but not later than twenty-four hours after being arrest

58. The Respondents have not challenged the applicant’s argument that they were over detained or that there was a justification for the over detention within the threshold of Article 24 of the Constitution.

59. This court is satisfied that the Applicants were over detained in breach of Article 49 of the Constitution.

60. However, the court finds nothing wrong with a trial magistrate ordering a detention of accused persons and the Applicants in exercise of discretion in this case upon being satisfied by the application of the director of prosecutions.

61. A party who is dissatisfied with such an order should lodge an appeal in the appropriate court.

62. On the issue of costs, the Civil Procedure Act (Cap. 21, Laws of Kenya), the primary law of judicial procedure in civil matters, thus stipulates (Section 27(1)):“Subject to such conditions and limitations’ as may be prescribed, and to the provisions of any law for the time being in force, the costs of and incidental to all suits shall be in the discretion of the court or judge, and the court or judge shall have full power to determine by whom and out of what property and to what extent such costs are to be paid, and to give all necessary directions for the purposes aforesaid; and the fact that the court or judge has no jurisdiction shall be no bar to the exercise of those powers:Provided that the costs of any action, cause or other matter or issue shall follow the event unless the court or judge shall for good reason otherwise order” [emphases supplied].

63. In Justice Kuloba’s words [Judicial Hints on Civil Procedure, at p.94]:“[T]he objects of ordering a party to pay costs is to reimburse the successful party for amounts expended on the case. It must not be made merely as a penal measure…Costs are a means by which a successful litigant is recouped for expenses to which he has been put in fighting an action.”The Applicants are entitled to costs.

Determination; 64. This court is of the view that this is an appropriate case for its intervene so as to check the illegalities that have been generated by the Respondents.

65. The applicant has made out a case for the grant of an orders sought.

Order; 1. An Order of Prohibition is hereby issued against the Director of Criminal Investigations and the Director of Public Prosecutions prohibiting the further incarceration, detention and charging of the Exparte Applicants.

2. An Order of Prohibition is hereby issued against the Director of Criminal Investigations and the Director of Public Prosecutions prohibiting the continuation of the miscellaneous criminal proceedings in Nairobi Chief Magistrates at Milimani Cr E410 of 2024 (Rep vs John Makau and 3 Others) and Nairobi Chief Magistrates at Milimani Cr E539 of 2024 (Rep vs Isaac Kimitei).

3. An Order of Certiorari is hereby issued bringing into this Court, the decision of the Director of Criminal Investigations to detain the Exparte Applicants, and be quashed by this honourable Court.

4. A Declaration is hereby issued to the effect that the Exparte Applicants are protected by law from prosecution arising from their actions or decisions applied in their official capacity within the course of their employment under the Environmental Management and Coordination Act.

5. Costs to the Applicants.

DATED, SIGNED AND DELIVERED AT NAIROBI THIS 16TH DAY OF MAY 2025. …………………………………………J. M. CHIGITI (SC)JUDGE