https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9239

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA IN NAIROBI** **JUDICIAL REVIEW APPLICATION NO. 103 OF 2022** **REPUBLIC………………………………………….……………..APPLICANT** **AND** **OFFICE OF THE DPP…………………………………..1ST RESPONDENT** **DIRECTOR OF PUBLIC PROSECUTIONS……….. 2ND RESPONDENT** **DIRECTOR OF CRIMINAL INVESTIGATIONS…..3RD RESPONDENT** **AND** **ANTHONY ODHIAMBO OGUTU** **ALLAN OTIENDE MAHONZIA & 2 OTHERS……EX PARTE APPLICANTS** **JUDGEMENT** 1. By a Notice of Motion dated 25th April 2025, the Applicants moved this honorable court for orders that: 2. ***Spent*** 3. ***Spent*** 4. ***The Honourable Court be pleased to grant an order of certiorari for purposes of being questioned the decision to investigate, charge and prosecute the Exparte Applicants, before exhausting the statutory procedures or complying with the doctrine of exhaustion.*** 5. ***An order of prohibition restraining and stopping the Respondents from continuing with investigations or arresting and charging the Exparte Applicants with regard to their services as former employees of M/S KUSCCO Mutual Assurance Ltd.*** 6. The application was supported with grounds on its face and further espoused in the affidavit of ANTHONY ODHIAMBO OGUTU where it was deponed that subject matter of the ongoing investigations carried out by the 3rd Respondent fell within the scope of internal disciplinary procedures provided under both the Insurance Act and Insurance Regulatory Authority. The Applicants contended that the procedures should be exhausted before external interventions like, investigations by the 3rd Respondent, are explored. 7. The Applicants deponed that no complaints or at all had been levied against the *Exparte* Applicants by their former employer neither has anything of criminal nature emanated during the *Exparte* applicant’s tenure of service and therefore the intervention of the 3rd Respondent undermined the integrity of the internal process and violated the applicants’ rights to fair administrative action and due process as guaranteed under the Constitution. 8. It was further deponed by the applicants that their former employer, being, KUSCCO Mutual Assurance Ltd, is different from KUSCCO Ltd and therefore allegations into criminal conduct at KUSCCO Ltd ought not be construed to imply that former employees KUSCCO Mutual Assurance Ltd are liable. 9. The Applicants maintained that the reason why they had been summoned for investigations had not been disclosed to them. However, it was evident that the investigations related to incentives for policy at KUSCCO Mutual Assurance Ltd. The Applicants deponed that KUSCCO Mutual Assurance Ltd has well set out incentives and commission payment policy guidelines which are approved and sanctioned by the Board. 10. The Applicants faulted the Respondents for failing to exhaust the remedies under Section 9 and Section 204A of the Insurance Act before instituting investigations into allegations of criminal misconduct against them. 11. The 1st and 2nd Respondents opposed the Application through Grounds of Opposition that the Applicants’ prayers are unconstitutional as they seek to prevent the Director of Public Prosecutions from exercising his mandate as provided under Article 157 of the Constitution. Therefore, the prayers, if granted, would result to a greater injustice in the criminal justice system and public interest. 12. Under **Article 157(10) of the Constitution** and **Section 6** of the Office of The **Director of Public Prosecution Act (2013**) the Respondent does not require the consent of any person or authority for the commencement of criminal proceedings and in the exercise of the powers or functions, shall not be under the direction or control of any person or authority. 13. It was further contended that **Section 24 of the National Police Service Act** mandates the police to investigate any complaint brought to their attention in order to determine whether a criminal offence has been committed. Thus, the Application was without merit and ought to be dismissed with cost to the 1st Respondents. 14. The court directed that the matter be canvassed through written submissions. 15. The Applicants submitted that their conduct and duties were regulated by the statutory law in the **Insurance Act** and **Insurance Regulatory Authority**, which has well outlined procedures for dealing with complaints and investigations into any matter, be it of criminal nature or civil nature. 16. The Applicants further submit that the 3rd Respondent did not give them any reason for summoning them to record any statements. Therefore, they will not have an opportunity to prepare adequately for their defence as they have no idea of the nature of the complaint against them. 17. The Respondent submitted that the Applicants had not established sufficient ground for the grant of orders of certiorari or prohibition. Reliance was placed on the case of **Mwangi v Director of Criminal Investigations & another; Raei Investment Limited & another (Interested Parties) (Judicial Review Miscellaneous Application E120 of 2024) [2025] KEHC 9583 (KLR) (Judicial Review) (25 June 2025)** where the Court declined to intervene where no formal decision to charge had been made, terming such an application premature and pre-emptive. The Court emphasized that judicial review is not a tool for insulating individuals from lawful investigation. Further, Article 157(10) of the Constitution insulates the 2nd Respondent from external direction in the commencement of proceedings. The supervisory jurisdiction of the High Court does not extend to micro-managing investigative steps or second-guessing prosecutorial evaluation of evidence. 18. The Respondent also relied on **Ihungi v Inspector-General of Police & 2 others; Namoya (Interested Party) (Constitutional Petition E040 of 2021) [2021] KEHC 129 (KLR),**where theCourt reiterated that the power to halt investigations must be exercised sparingly and only in exceptional circumstances. Certiorari cannot issue merely because a party anticipates being charged. There must be demonstrable illegality in a concluded decision. None exists where the file is still under investigation. Thus, the Applicants is not entitled to the Orders sought. 19. It was the Respondents' submission that the Applicants had failed to demonstrate that the actions of the Respondents contravened the principles of natural justice to the required standard. There is no evidence that the act of being summoned to record statements was tainted by illegality of actuated by bad faith. The Respondent maintained that criminal proceedings may only be halted where they are oppressive, vexatious, or constitute a clear abuse of the court process. 20. The Respondent urged that the Application be dismissed. **Analysis and determination** 1. I have considered the application and the responses thereto by the respondents. In my view, the issues arising for determination are: 2. Whether the Jurisdiction of this court has been properly invoked. 3. Whether the Applicants are entitled to judicial review orders of certiorari and prohibition. 4. The doctrine of exhaustion in Kenya traces its origin from **Article 159(2)(c) of the Constitution** which recognizes and entrenches the use of alternative mechanisms of dispute resolution. 5. In **Mombasa High Court Constitutional Petition No. 159 of 2018 consolidated with Constitutional Petition No. 201 of 2019 William Odhiambo Ramogi & 3 others v Attorney General & 4 others; Muslims for Human Rights & 2 others (Interested Parties) (2020) eKLR***.* The Court stated as follows: *“52. The question of exhaustion of administrative remedies arises when a litigant, aggrieved by an agency's action, seeks redress from a Court of law on an action without pursuing available remedies before the agency itself. The exhaustion doctrine serves the purpose of ensuring that there is a postponement of judicial consideration of matters to ensure that a party is, first of all, diligent in the protection of his own interest within the mechanisms in place for resolution outside the Courts. This encourages alternative dispute resolution mechanisms in line with Article 159 of the Constitution.”* 1. The Court of Appeal further stated thus in regards to the doctrine of exhaustion in **Speaker of National Assembly v Karume [1992] KLR 21** in the following oft-repeated words: *“Where there is a clear procedure for redress of any particular grievance prescribed by the Constitution or an Act of Parliament, that procedure should be strictly followed. Accordingly, the special procedure provided by any law must be strictly adhered to since there are good reasons for such special procedures.”* 1. I have noted that the Applicants, while alleging that they were not informed of the reason for being summoned to record their statements with the 3rd Respondent, contend that remedies under **Section 9 and Section 204A of the Insurance Act** have not been exhausted to warrant the intervention by the 3rd Respondent. 2. I find this line of argument particularly disturbing as it appears to be advancing two arguments at the same time. It is either the applicants are unaware of the complaint leading to their summoning 3rd Respondent or that the said complaint falls within the jurisdiction of **Section 9 and Section 204A of the Insurance Act**. The two positions cannot be legally advanced by the same person. 3. Without such clarity from the Applicants, the court is left with no other option but that the Applicant’s grievance is founded on speculation and conjecture. The Applicants deponed in paragraph 6 of the Supporting Affidavit dated 25th April 2025 that there was no complaint that has been levelled against them by their former employer to warrant the intervention of the 3rd Respondent, yet in paragraph 12 of the same affidavit, it is speculated that the investigations by the 3rd Respondent could have been driven by issues relating to commission and incentives in payment of policy. 4. This level of speculation by the Applicants indeed demonstrates that they have no clarity on the exact administrative action that they are seeking the intervention of this honorable court. 5. For context, the Applicants have moved this court for orders of certiorari for purposes of being quashed the decision to investigate, charge and prosecute the *ex-parte* Applicants, before exhausting the statutory procedures or complying with the doctrine of exhaustion. 6. The manner of seeking an order of certiorari is prescribed by the law. **Order 53 rule 7 of the Civil Procedure Rules** provide that: *“In the case of an application for an order of certiorari to remove any proceedings for the purpose of their being quashed, the applicant shall not question the validity of any order, warrant, commitment, conviction, inquisition or record, unless before the hearing of the motion he has lodged a copy thereof verified by affidavit with the registrar, or accounts for his failure to do so to the satisfaction of the High Court.”* 1. From the foregoing, a party seeking an order of certiorari is required to attach a copy of the decision/ order/ warrant or commitment that is sought to be quashed. In the instant case however, the Applicants have not attached any order, warrant or decision by the Respondent to initiate criminal investigations or criminal charges against them. None of such evidence has been availed to demonstrate that the Applicants were summoned by the Respondent to respond to allegations of criminal misconduct. In any case, it is not always the case that any person who is summoned by the 3rd Respondent for purposes of recording a statement does so in the capacity of a suspect. 2. Without the decision that is sought to be quashed being attached, the court has no capacity to ascertain the correctness of the administrative action for which the intervention of this court is sought. The failure to annex the decision to be challenged in this case is fatal as it remains uncertain whether there actually exists a decision which can be called into court for purposes of quashing. 3. Moreover, no charge sheet, case number or any other such document has been availed before this court to demonstrate that there exists a decision to institute criminal charges against the Applicants by the 2nd Respondent to warrant the grant of the writ of certiorari. It is trite that certiorari cannot be issued against future conduct, it only acts against a decision that has already been made. 4. A perusal of the Motion by the Applicant shows that it is brought under **Article 23, 35, 47 and 50 of the Constitution**. While the nature of Judicial review in Kenya has significantly changed, there is certainty as to the manner in which the jurisdiction of the court can be properly invoked for issuance of the writ of Judicial review. The manner in which the Applicant has invoked the jurisdiction of this court neither conforms with the Fair Administrative Action Rules nor the provisions of **Order 53 of the Civil Procedure Rules** and **Section 8 and 9 of the Law Reform Act.** 5. Therefore, it is unclear from the Application the nature of intervention that the Applicant is seeking. Although clothed as a constitutional question under article 23, 47 and 50, the pleadings do not in any way disclose a violation of any right or freedom to warrant a merit review as was espoused by the Supreme Court in **Dande & 3 others v Inspector General, National Police Service & 5 others [2023] KESC 40 (KLR*)*** 6. The Court of Appeal in **Aluochier v Independent Electoral and Boundaries Commission & 17 others [2022] KECA 952 (KLR)** remarked thus regarding the manner of seeking the writ of judicial review: *“20. With regard to the mandatory procedure for bringing judicial review applications, the learned judge held, again correctly in our view, that judicial review is a special jurisdiction; and that, in so far as no rules have been made under Article 47 of*[*the Constitution*](https://kenyalaw.org/akn/ke/act/2010/constitution)*, there can be no vacuum in law; that a party approaching the court for judicial review orders of certiorari, mandamus or prohibition must comply with the procedure set out in Order 53 Rule 1(2) of the*[*Civil Procedure Rules*](http://kenyalaw.org:8181/exist/kenyalex/sublegview.xql?subleg=CAP.%2021)*. Accordingly, such a party must seek the court’s leave by way of a Chamber Summons Application supported by a Statement of Facts and a Verifying Affidavit together with relevant annexures in support of the prayers sought.”* 1. Order 53 Rule 1 of the [*Civil Procedure Rules*](http://kenyalaw.org:8181/exist/kenyalex/sublegview.xql?subleg=CAP.%2021), which is couched in mandatory terms, provides: *“Applications for mandamus, revision, prohibition and certiorari to be made only with leave.* *1.No application for an order of mandamus, prohibition or certiorari shall be made unless leave therefore has been granted in accordance with this rule.* *2.An application for such leave as aforesaid shall be made ex parte to a judge in chambers, and shall be accompanied by a statement setting out the name and description of the applicant, the relief sought, and the grounds on which it is sought, and by affidavits verifying the facts relied on.”* 1. The Court of Appeal in the Aluochier Polo case (supra) further remarked that: *“....we reach the inescapable conclusion that Order 53 Rule 1 applies in mandatory terms…* *…The above-mentioned procedural defects rendered the application before the Court fatally defective. In addition, however, the learned Judge observed that the applicant had also failed to annex the decision sought to be reviewed. Failure on the appellant’s part to annex the impugned decision to the affidavit in support of his application meant that he submitted nothing to be reviewed. The learned Judge so concluded in view of the fact that the appellant’s affidavit in support did not contain any annexures relating to the decision which the applicant sought to rely upon. In the absence of marked and sealed annexures, there was nothing for the court to consider on review. In effect, the application alone stood bare and devoid of substance for review. Even had the appellant followed the correct procedure, that glaring omission would have rendered his Motion defective and fatally incompetent.”* 1. Regarding the question whether these defects amount to procedural defects curable under Article 159 (2) (d) of the Constitution, the Court of Appeal maintained that they are not *curable. The Court stated:* *“A question then arises as to whether the appellant’s Motion as characterized by the foregoing procedural defects would find cure in Article 159(2) (d) of*[*the Constitution*](https://kenyalaw.org/akn/ke/act/2010/constitution)*, which mandates courts and tribunals to administer justice without undue regard to technicalities of procedure. It would not. We agree with the learned Judge that Article 159(2) (d) of*[*the Constitution*](https://kenyalaw.org/akn/ke/act/2010/constitution)*could not come as a saving grace to the applicant. That Article cannot be used to circumvent mandatory rules of procedure laid down in statute law.”* 1. The Applicants having failed to seek leave of court before instituting these proceedings are therefore not entitled to the reliefs sought. 2. ***For the above reasons and in the circumstances, the Applicants application is dismissed for lacking in merit with no orders as to costs.*** **Dated, Signed and Delivered Virtually on this 25th day of June, 2026.** **HON. T. W. OUYA, OGW** **JUDGE** **In the presence of:** Mukolwe for Ms. Kihara for 2nd Respondent Nyabuto – Court Assistant