https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11704

**REPUBLIC OF KENYA** **IN THE HIGH COURT AT MAKUENI** **JUDICIAL REVIEW CASE NO. E009 OF 2026** **IN THE MATTER OF AN APPLICATION FOR JUDICIAL REVIEW ORDERS OF CERTIORARI & PROHIBITION** **AND** **IN THE MATTER OF ARTICLE 47 OF THE CONSTITUTTION OF KENYA 2010, ORDER 53 OF** **THE CIVIL PROCEDURE (AMENDMENT) RULES 2020)** **AND** **IN THE MATTER OF ARTICLES 2, 10, 19, 20, 21, 22, 23, 24, 27,35(2), 43(1) (f), 47, 48, 165 AND 232 OF THE CONSTITUTION OF KENYA 2010** **AND** **IN THE MATTER OF THE FAIR ADMINISTRATIVE ACTION ACT** **AND** **IN THE MATTER OF THE DECISION TO CHARGE THE APPLICANT IN** **CRIMINAL CASE NO. E013 OF 2026** **BETWEEN** **REPUBLIC……….............................................................................. APPLICANT** **AND** **INSPECTOR GENERAL OF POLICE............................................1ST RESPONDENT** **BENARD NTHENGE.................................................................2ND RESPONDENT** **OFFICE OF THE DIRECTOR OF PUBLIC PROSECUTIONS.......3RD RESPONDENT** **EUNICE NZULA........................................................................4TH RESPONDENT** **AND** **ABEDNEGO MULI……………………………………………*EX-PARTE* APPLICANT** **JUDGMENT** 1. The application before me seeking determination is dated 13/04/2026 brought under **Order 53 Rule 3 of the Civil Procedure Rules, Sections 1A, 1B,** **3A of the Civil Procedure Act, Article 47, 165 of the Constitution and Sections** **7 & 11 of the Fair Administrative Action Act**. It seeks; 2. **An Order of Certiorari quashing criminal charges and proceedings in MCCR/E013/2026, Republic vs Abednego Muli Nthongoi at Tawa Magistrates Courts.** 3. **An Order prohibiting the 2nd Respondent from continuing to serve in the National Police Service and as Officer Commanding Station.** 4. **An Order prohibiting the Respondents from further prosecuting, arresting or intimidating the Applicant over the subject matter.** 5. **An order for damages for the pain, suffering, derogation of dignity and violation of rights on account of malicious prosecution.** 6. **Any other reliefs as the Court may deem fit.** 7. **The Costs for this application be provided for.** 8. The application is supported by the grounds on its face, the Affidavit sworn on 16/03/2026 by Abednego Muli Nthongoi, his Statutory Statement dated 13/03/2026 and his Supplementary Affidavit sworn on 13/05/2026. 9. He deposed that sometime in 2026, he was arrested by police officers from Tawa Police Station on allegations of malicious damage to property, a wire allegedly belonging to Eunice, the 4th Respondent. 10. That, he was subsequently charged in Criminal Case No. E013 of 2026 and that individuals known to him and the complainant destroyed his gate and wire fence and dug trenches on land which has a succession dispute between him and his brother. That, he reported the incident at Tawa Police Station and was issued with OB Number 11/31/1/2026. 11. That, the suspects were arrested but later released without being charged nor further investigations or legal action taken. That, he has written complaints to the Police and the Office of the Director of Public Prosecutions requesting action but none has been taken against the said suspects and no response has been given to his Advocate. 12. He averred that the criminal case against him is malicious and intended to intimidate him due to a land dispute between him and his brother hence not a genuine prosecution. Documents filed in Criminal Case E013 of 2026 by the Respondents, copy of OB Number 11/31/1/2026, photo of damaged gate, minutes of a family meeting regarding the land dispute and copy of the Agreement produced by the Respondents in Criminal Case E013 of 2026 herein were attached. 13. He deposed that the Respondents have abused their powers and that there is no pending case between him and the Respondents before any other Court. 14. The application was opposed through the Replying Affidavit sworn by CI Benard Nthenge on 24/04/2026 on behalf of the 1st, 2nd & 3rd Respondents and the Replying Affidavit of the 4th Respondent sworn on 14/05/2026. 1. Mr. Benard Nthenge deposed that he is currently serving as the OCS Tawa Police Station within Mbooni East Sub County, Makueni County a position which he has held since 1st January 2023. 2. That, on 15/01/2026, a report was made to the station at 1230hrs by Eunice Nzula, the 4th Respondent herein videOB No. 18/15/01/2026 claiming that, a person well known to her had maliciously destroyed part of her fence. That, investigations were initiated into the complaint and Investigation file No. CR 4070/06/2026 compiled and submitted to the ODPP at Tawa for perusal and advice. 3. That, on 31/01/2026 at 1640 hours, Abednego Muli made a report of malicious damage and offensive conduct against a group of people well known to him at Tawa Police Station vide OB No. 11/31/01/2026. That, investigations were conducted immediately and the suspects were arrested on 20/02/2026 and released on police cash bail on 21/02/2026 pending the conclusion of investigations. 4. That, on 10/03/2026, he received a letter from ODPP Tawa asking him to forward the investigations file for perusal and advice. That, the complete file was forwarded and received at ODPP Tawa on 18/03/2026. Copies of correspondence were exhibited as **BN 2 & 3.** 5. That, vide a letter dated 14/04/2026-addressed to the Applicant’s Advocates and copied to the 2nd Respondent, the ODPP returned the file to the station with a recommendation that; **“the evidence available does not meet the threshold required for prosecution to be commenced”**. That, the letter exhaustively gave reasons for the decision not to charge the suspects against whom the Applicant had complained. A copy of the letter was exhibited as **BN 4.** 6. He further stated that, the decision to charge or not to charge is purely made by the 1st and 3rd Respondents and that he acted as directed by the 3rd Respondent. That, the complaint by the 4th Respondent was independently investigated and found to meet the threshold for charging the Applicant. That, the complaint by the Applicant was equally separately investigated and found not to meet the requisite threshold. That, it is therefore malicious for the Applicant to allege abuse of power on the part of the 2nd Respondent yet his complaint was procedurally and exhaustively investigated. 7. That, the case before Tawa Law Courts is on malicious damage to property which is a criminal offence and does not touch on any land disputes between the Applicant and any other person. He deposed that any land dispute can only be determined through a civil claim. That, the 1st, 2nd and 3rd Respondents are not parties to any land dispute involving the Applicant and have no interest whatsoever in the disputed land. 8. He deponed that, the case at Tawa Law Courts is before a competent court capable of determining the Applicant’s guilt or otherwise and this court cannot descend into the purview of determining the merits of the case. 9. That, under **Article 157 of the Constitution,** the 3rd Respondent is vested with the exercise of state powers of prosecution and therefore not under the direction or control of any person or authority in making the decision to charge. He averred that the Applicant has failed to demonstrate any procedural impropriety, illegality or irrationality on the part of the 1st, 2nd and 3rd Respondents. 10. It was further deposed that; the Applicant is not above the law and no sufficient grounds have been provided warranting the quashing and discontinuation of proceedings at Tawa Law Courts. 11. Eunice Nzula, the 4th Respondent, deposed that her father, Anthony Musyoka Nthongoi and his brother Abednego Muli are sons of Nthongoi Ing’eli. That, the subject lands, Kiteta/Kakuswi/665 and Kiteta/Kakuswi /660, were subdivided between the two brothers who started living harmoniously. That, there is a route passing through their home and they decided to remove it to the actual survey route. 12. That, the wife of Abednego Nthongoi (Angelica Muli) was disturbing them as a family and the OCPD Kisau and surveyor were present on the day the route was re-routed. That, Angelica Muli claimed that she could not use the new route as it had evil spirits. That, the OCPD requested Pastor Onesmus Wambua (their cousin) to pray and they all passed through the route. 13. That, one night, she (Eunice) heard a loud banging noise and upon checking, she found 3 men who ran away upon seeing her. That, Abednego Nthongoi came out and said that they shall use the route. She stated that, the said men destroyed the fence on both sides. That, on the following day, while her casual worker was going to the shamba, Abednego Nthongoi told the worker to stop using the route. That, Abednego Nthongoi continued to use their shamba as his route. 14. That, she reported the issue to Tawa Police Station with a complaint of destruction of property and disturbance thus attracting action being taken against Abednego Nthongoi who was charged at Tawa Law Courts. That, by the time Abednego made his complaint, her case had already been processed. 15. She stated that the process of investigation was undertaken by the Officer Commanding Station Tawa Police Station and the prosecution was done by Director of Public Prosecution hence had no role to play in the investigations and prosecution. 16. That, the current suit is a delay and distraction of justice to her by the Applicant who is avoiding responsibility for his actions of destroying her property. That, the Judicial Review Application lacks merit and should be dismissed. 17. In rejoinder, the *Ex-Parte* Applicant deposed that it is necessary for the court to note that the 4th Respondent entered appearance through the firm of D.M Kyalo & Associates Advocates but has not responded to the application for unknown reasons despite the court extending timelines to comply twice. 18. That, the Replying Affidavit dated 24/04/2026 contains information and documents that were never availed to him at Tawa Magistrates Court with the intention of distorting the facts of the case. That, he believes that they have been fabricated as result of commencement of these Judicial Review proceedings. 19. He claimed that, when the matter at Tawa Magistrates Court, MCCR E013 of 2026 Republic vs Abednego, came up on 11/2/2026, the Court directed the 2nd Respondent to provide status of investigations of OB 11/31/1/2026 at Tawa Police Station. That, despite going to the Station accompanied by his wife and Advocates, no report was given to them and they were instead told to record statements for the second time before a Police Officer called Raphael. 20. That, on 04/03/2026, his Advocates formally wrote to the 2nd Respondent seeking status of investigations but there was no response. That, on 05/03/2026, his Advocates also wrote to the 3rd Respondent seeking information on the decision not to charge the suspects in OB 11/31/1/2026 but there was no response. 21. That, from their own documents, the 3rd Respondent wrote to the 2nd Respondent on 10/03/2026 requesting for the police file i.e. five days after they had sought information. That, it is clear that by 10/03/2026, the police file had not been forwarded to the 3rd Respondent herein. 22. That, on 21/02/2026, the Investigations Diary indicates that the suspects were released on cash bail and were to be presented before a magistrate under the orders of the 2nd Respondent but it has never happened to date. That, there is also no evidence that bail was granted. 23. That, the 3rd Respondent’s letter dated 14/04/2026 comes many days after these proceedings have begun and does not show any timelines on when the decision not to charge was made. That, it is clear from the police records that the parcel of land in dispute belongs to him *(Ex-Parte* Applicant) and his brother Anthony Musyoka. That, the property does not belong to the 4th Respondent herein hence rendering decisions by the 3rd Respondent unreasonable and suspicious. 24. That, the Police records provided by the 3rd Respondent, which were never served upon him during Pre-Trial at the Magistrates Court, do not explain why the suspects in OB 11/31/1/2026 were on their piece of land illegally to sub divide, dig trenches and erect wires without his permission and that of his brother. 25. That, in an effort to cripple these proceedings, the Respondents have now affirmed the allegations of bias, discrimination and malicious prosecution over a piece of land which does not even belong to the 4th Respondent the Complainant in the case before the lower court. 26. The application was canvassed through written submissions. The only submissions on record are for the *Ex-Parte* Applicant. 27. The issues for determination were stated to be; 28. **Whether there is a land dispute being the basis for malicious prosecution.** 29. **Whether the Respondents acted illegally and unprocedurally, biased, acted in bad faith and in abuse of office.** 30. **Whether the 2nd Respondent is personally liable for his action.** 31. As to whether there is a land dispute as the basis for malicious prosecution, it was submitted that criminal proceedings which are mere disguises for civil disputes are an abuse of the legal process and should be quashed. 32. It was submitted that there is a land dispute between the *Ex-Parte* Applicant and his brother Anthony Musyoka which is the basis of his arrest and prosecution. Reliance was placed on the Court of Appeal decision in **George Masinde Murunga -vs- Attorney General 1979 KEHC 34 KLR** for the submission that; it is malicious prosecution where investigations are selective, inadequate and for an improper motive. 33. That, the Applicant advocated for equal share of the estate between him and his brother Anthony, the 4th Respondent’s father, but the Respondents fabricated evidence and brought charges against him in order to intimidate him over the land disputes. 34. That, the prosecution provided an agreement before the trial court clearly implicating the 2nd Respondent and other sub-county security officers. That, in the agreement, they purported to have mediated the issues between him and his brother Anthony Muli but the truth of the matter is that they have always intermingled in the dispute with ulterior motives for a long time. 35. That, as shown in the Investigation’s Diary generated after commencement of these proceedings, the 2nd Respondent admits that the issues in question are not criminal in nature but ones which require civil litigation. That, it is unfortunate that they brought up the charges in the lower court so as to prevent the Applicant from demanding an equal share of the estate of his late father, 36. It was submitted that the 4th Respondent lied that she is the owner of the land, wires and beacons which were damaged by three people she saw running towards the Applicant’s house. That, the land is supposed to be shared equally between Abednego Muli and Antony Musyoka after succession process is over and minutes of the family meetings are on record. That, Antony Musyoka, the father of the 4th Respondent the Complainant in the trial case has never recorded statements or reported that any of his property on the suit land has been damaged. That, the 4th Respondent colluded with the Respondents to intimidate the Applicant. 37. That, the fact that land dispute is at the center of the case is not disputed by the Respondents. 38. It was submitted that both the families of Abednego Muli and Antony Muli should adhere to the succession rules to end the dispute and not use the criminal justice system to intimidate the Applicant. Reliance was placed on the Court of Appeal decision in the case of **Police and Director of Criminal investigations -vs- Kenya Commercial Bank Limited and 4 Others 2013 eKLR** for the submission that it is not in the public interest or in the interest of the administration of justice to use criminal justice process as a pawn in civil disputes. 39. Further reliance was placed on the Supreme Court decision in the case of **Cyrus Shakhalaga Jirongo -vs- Republic and 10 Others 2021 eKLR** for the submission that the state should not use investigative and prosecutorial machinery to force an advantage in ongoing civil issues. Reliance was also placed on the Court of Appeal decision in **Eldoret in Civil Appeal No. 136 of 2004** which upheld a High Court judgment quashing criminal complaints that were filed over a property dispute. 40. It was contended that, the Respondents have failed to disclose to the Court that the subject matter before the Tawa Magistrates Court does not belong to the 4th Respondent but her father hence the charges against the Applicant are null and void. That, there is no adequate evidence that directly implicates the Applicant to the crimes in the charge sheet. 41. This court was beseeched to find that the criminal charges in the lower court should end and advise parties to follow civil channels to ensure smooth sub division of land. The court was also beseeched to hold that Judicial review entails both substantive and procedural merits in line with Supreme Court’s decision in **Edwin Harold Dayan Dande & Others -vs- Director of Public Prosecutions & Others.** 42. As to whether the Respondents acted illegally, unprocedurally, in a biased manner, in bad faith and in abuse of office, it was submitted that the Respondents did not follow the law and proper procedures in dealing with OB 11/31/1/2026 at Tawa Police Station. That, the Respondents violated the Police Standing Orders and the Guidelines to Charge, which are the rules established to guide them when making arrests and charging arrested persons. 43. That, the Respondents violated **Article 157 of the Constitution, Section 4 of the ODPP Act, Part 3 of the ODPP** decision to Charge Guidelines which requires the 3rd Respondent to objectively evaluate evidence. Reliance was placed on the Court of Appeal decision in **Diamond Hasham Lalji and Another -vs- Attorney General and 4 Others** for the submissions that criminal proceedings should be quashed where there is abuse of the process and when ODPP fails to independently evaluate evidence. 44. It was contended that proper investigations over the OB would have revealed the real suspects who damaged wires, gate, dug trenches and put up beacons. That, it would also have indicated that the Respondents were not biased. That, the investigations diary shows that the suspects were to be arraigned after release on police cash bail and indicates that the 2nd Respondent had allowed the suspects to be presented before court. That, the reason why they were never presented before Court and the motive behind it is very suspicious. That, there is no evidence on record to show that the police cash bail was used and no evidence of receipts that the money was paid. 45. It was submitted that the 3rd Respondent requested for the compiled police file on 10/03/2026 and received it on 18/03/2026 which actions only occurred because of the *Ex-Parte* Applicant’s letter dated 05/03/2026 seeking clarifications on the decision not to charge suspects who, clearly through video and photo evidence, damaged property belonging to the *Ex-Parte* Applicant. That, the letter dated 14/04/2026 addressed to the *Ex-Parte* Applicant, which purports to explain the decision not to charge, has been generated for the purposes of these proceedings. That, it was never served upon *Ex-Parte* Applicant and was only sent via email on 22/05/2026, way after these proceedings begun. That, this is an indication that the Applicant was discriminated and that, the 1st to 3rd Respondents were biased in order to intimidate and unfairly make the Applicant not to purse equal share of land with his brother Anthony. 46. That, the acts by the Respondents amount to violation of **Articles 157,10,27,25 and 50 of the Constitution of Kenya** hence an abuse of office. This court was urged to find that Judicial Review entails both procedural and substantive aspects of merit review of administrative action as held by the Court of Appeal in **Suchan Investment Limited -vs- Ministry of National Heritage and Culture and 3 Others**. 47. As to whether the 2nd Respondent is personally liable for his actions, it was submitted that a senior police officer is liable for actions taken in his jurisdiction through the doctrine of command responsibility. Reliance was placed on the case of **Katiba Institute -vs- Japhet Koome Nchebere 2024 eKLR** where the Court found the Inspector General personally liable for his directives and actions by officers under him. It was submitted that this principle applies to all senior officers including the 2nd Respondent. 48. It was submitted that the 2nd Respondent personally released suspects and never produced them in court. That, he is personally part of the dispute and is in fact implicated by his own agreement that purported to end the land dispute. That, he unlawfully allowed arrest and prosecution of the Applicant, knowing clearly that land dispute is the main issue in the family. That, he collaborated with the 4th Respondent to mislead the courts and unfairly prosecuted the Applicant. 49. It was submitted that the 2nd Respondent acted outside the law and in abuse of office in which he is supposed to serve Kenyans without favour. That, he violated **Article 47 of the Constitution and Sections 24 and 25 of the National Police** **Service Act**. That, he also violated the Police Standing Orders which require proper documentation where arrested persons are released on police cash bail. That, he should be found personally liable for improper investigations and actions by his officers and himself at Tawa Police Station. 50. It was submitted that **Article 244 of the Constitution Mandates the National Police Service** to comply with constitutional standards of Human Rights and Fundamental Freedoms. Reliance was placed on **Akusala A. Boniface -vs- OCS Langata Police Station & 4 Others** where the High Court established that police officers, including an OCS, can be held personally liable when their actions result in the infringement of constitutional rights. 51. In conclusion, it was submitted that **Section 11 of the Fair Administrative** **Action Act and Article 23 of the Constitution** empower the court to grant any order that is just and equitable. 52. Having looked at the application, response and the rival submissions, it is my considered view that the only issue for determination is whether the *Ex-Parte* Applicant has met the threshold for grant of Judicial Review orders. 53. It is trite that Judicial Review is concerned with the decision-making process and not the merits of a decision. In **Pastoli -vs- Kabale District Local Government Council & Others [2008] 2 EA 300 -** which has been applied in our jurisdiction consistently it was determined that the grounds upon which Judicial Review remedies may issue are; illegality, irrationality and procedural impropriety. 54. In the persuasive case of [**Republic -vs- Chesang (Ms) Resident Magistrate & 2 Others *Ex-parte* Paul Karanja Kamunge t/a Davisco Agencies & 2 Others**](http://kenyalaw.org/caselaw/cases/view/130395/) **[2017] eKLR** the Court (Odunga J) highlighted the considerations for Judicial Review as follows; **“26. Judicial review is a constitutional supervision of public authorities involving a challenge to the legal and procedural 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 taking into account 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.”** 1. In this case, the *Ex-Parte* Applicant wants the criminal charges and proceedings in Tawa MCCR/E013/2026, Republic -vs- Abednego Muli Nthongoi to be quashed and the Respondents be prohibited from further prosecuting, arresting or intimidating him over the subject matter. 2. The *Ex-Parte* Applicant is the Accused Person in Tawa Criminal Case No. E013 of 2026 and the burden is on him to demonstrate that the 3rd Respondent’s (DPP) decision to prefer the charges is tainted with illegality, irrationality or procedural impropriety. 3. The 4th Respondent is the Complainant in the case against the *Ex-Parte* Applicant and, in her affidavit, she described the events which culminated in making a report at Tawa Police Station. The 2nd Respondent confirmed that on 15/01/2026, the 4th Respondent reported a case of malicious damage to property which led to investigations and submission of Police File No. 4070/06/2026 to the office of DPP at Tawa for perusal and advice. The charge sheet (BN 5) shows that the *Ex-Parte* Applicant was arraigned in court to answer to the charges on 23/01/2026. 4. Under **Article 245 of the Constitution**, the Inspector General of Police exercises independent command over the National Police Service. The Directorate of Criminal Investigations (DCI) established under the National Police Service Act is one of the primary investigative bodies in Kenya and it has a mandate of detecting, preventing and investigating crime. It is therefore evident that the 2nd Respondent acted within his mandate by overseeing the investigations against the *Ex-Parte* Applicant. 5. On the other hand, **Article 157 of the Constitution** vests the prosecutorial mandate on the Office of the Director of Public Prosecutions (3rd Respondent). **Article 157(6)(a) of the Constitution** provides that; the DPP shall exercise state powers of prosecution and may 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. It is therefore evident that the 3rd Respondent acted within its mandate by recommending the prosecution of the *Ex-Parte* Applicant. In **Republic -vs- Judicial Service Commission Ex parte Pareno [2004] 1 KLR 203, at 219,** Nyamu J. stated that: - **“A judicial review court cannot also assume appellate jurisdiction...the court will not, however on judicial review application act as a court of appeal from the body concerned, nor will the court interfere in any way with the exercise of any power of discretion which has been conferred on that body, unless it has been exercised in way which is not within the body’s jurisdiction, or the decision is Wednesbury unreasonable. The function of the court is to see that the lawful authority is not abused by unfair treatment. If the court were to attempt itself the task entrusted to that authority by the law the court would, under the guise of preventing the abuse of power be guilty itself of usurping power.”** 1. The materials before court show that investigations were conducted and a recommendation to prosecute was made and reviewed. The *Ex-Parte* Applicant maintains that there is a succession dispute between him and his brother and that the criminal justice system is being used to intimidate him. This court must resist the invitation to delve into the merits of the decision because the proper forum for testing the sufficiency and credibility of evidence remains the trial court and not a Judicial Review court. 2. The *Ex-Parte* Applicant also complained that he made a report about damage to his property at Tawa Police Station via OB No. 11/31/01/2026 but the same has not been investigated and the suspects have not been prosecuted. 3. I note that the *Ex-Parte* Applicant has not made any prayers with regard to the decisions of the 1st and 3rd Respondents concerning his complaint but nonetheless, the said Respondents have exhibited correspondence showing that the police file concerning the complaint was forwarded to the DPP who advised that; **“the evidence available does not meet the threshold required for prosecution to be commenced.”** I do not see how the complaint regarding the *Ex-Parte* Applicant’sreport is helping this court in determining whether the decision to prefer the charges against him was tainted with illegality, irrationality or procedural impropriety. This is especially due to the fact that his report was made two weeks after the 4th Respondent’s report. 4. The upshot is that the *Ex-Parte* Applicant has not met the threshold for grant of Judicial Review orders of *certiorari* and prohibition. 5. The prayer for an order prohibiting the 2nd Respondent from continuing to serve in the National Police Service and as Officer Commanding Station is untenable in this forum even if the court were to find that the impugned decision should be quashed. It is an adverse order which would require strict adherence to due process in a proper trial. 6. As for the prayer for damages, the same is also untenable as the *Ex-Parte* Applicant has not established that the decision to charge him was tainted with illegality, irrationality or procedural impropriety. Further, the **Black’s Law Dictionary, Thomson West Publishing, 8th Edition, 2004,** defines malicious prosecution as follows; **“The institution of a criminal or civil proceeding for an improper purpose and without probable cause. The tort requires an adversary to prove four elements-** **i) The initiation or continuation of a law suit;** **ii) Lack of probable cause;** **iii) Malice; and,** **iv) Favourable termination of the law suit”** 1. From the foregoing, it is easy to conclude that the establishment of malicious prosecution requires a proper trial as well. In this case, the proceedings against the *Ex-Parte* Applicant in Tawa Law Courts are yet to be concluded. 2. In a nutshell, the application is devoid of merit hence dismissed. The Applicant shall have an opportunity to advance his case before the trial court. The order staying the criminal trial is lifted. Dated, signed and delivered virtually this **29th** day of **July 2026** ........................................... J.N.ONYIEGO **JUDGE**