https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11219

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT NAIROBI** **JUDICIAL REVIEW NO. E010 OF 2026** **REPUBLIC……………………………………………………..…....................…APPLICANT** **VERSUS** **THE OFFICER IN-CHARGE** **CID STAREHE HEADQUARTER…………………………………...1ST RESPONDENT** **THE OFFICER COMMANDING POLICE STATION,** **STAREHE POLICE STATION………………...……………………..2ND RESPONDENT** **THE INSPECTOR-GENERAL OF** **THE NATIONAL POLICE SERVICE……………………………….3RD RESPONDENT** **THE DIRECTOR OF** **CRIMINAL INVESTIGATIONS DEPARTMENT………………4TH RESPONDENT** **DIRECTOR OF PUBLIC PROSECUTIONS (DPP)…………....5TH RESPONDENT** **AND** **ABDALLAHI…………………………………………….……….1ST INTERESTED PARTY** **GALMA TUKYE…………………………………………….…..2ND INTERESTED PARTY** **HASSAN MAJANI………………………………………………3RD INTERESTED PARTY** ***EX PARTE*: SAMUEL MBUGUA MAINA** **JUDGMENT** 1. These Judicial Review proceedings were initiated herein under certificate of urgency, by way of an *ex parte* chamber summons, dated 13th January 2026, seeking leave to apply for *certiorari* and prohibition orders*,* directed at the respondents, to quash the decision to charge him with the offence of obtaining money by false pretence, contrary to section 313 of the Penal Code, Cap. 63, Laws of Kenya.The *ex parte* chamber application was placed before the Judge, on 19th January 2026, and the leave sought was granted. The contemplated substantive motion had been filed simultaneously with the *ex parte* chamber summons, and it was dated 13th January 2026, and the court adopted it, and gave directions on its service. 2. According to the statutory statement, reports had been made at the Central, Kayole and Starehe Police Stations, by the interested parties, against the *ex parte* applicant over the matter of obtaining money by false pretences. The *ex parte* applicant contacted his Advocate over the matter. The *ex parte* applicant was allegedly arrested severally on flimsy excuses, and his motor vehicle, registration mark and number KCF 615T, was allegedly illegally detained at the office of the CID Ruaraka SCCIO. The *ex parte* applicant appeared at the Central Police Station, and was released on bond, pending investigations. It is alleged that despite that the police have failed to carry out proper investigations. The verifying affidavit, sworn by the *ex parte* applicant, on 13th January 2026, is virtually a carbon-copy or replica of his statutory statement. No documents have been attached to it. 3. The respondents have reacted to the motion, vide an affidavit, sworn on 26th February 2026, by No. 80081 Police Corporal Godfrey Munene, of the Directorate of Criminal Investigations, Starehe Sub-County. He avers that the *ex parte* applicant was under active and lawful criminal investigations, with respect to the offence of obtaining money by false pretences, on formal complaints lodged by the interested parties, upon receiving money from them, on the pretence that he had land, at Eastleigh, Nairobi, which he was to sell to them. He also avers that the motor vehicle had been deceitfully obtained from the 1st interested party, under the pretext that the *ex parte* applicant would sell it to facilitate completion of the sale of the land. It is averred that these proceedings are premature. 4. Several documents are attached to that replying affidavit. There is a letter, dated 23rd October 2025, from the 1st interested party, addressed to the DCIO, Pangani Police Station, on the complainant relating to the land and the motor vehicle; there is an MPesa statement, dated 11th June 2025, on the account of the 2nd interested party; there is another MPesa statement, dated 13th March 2025, on the account of the 1st interested party; there is a copy of a motor vehicle sale agreement, relating to KCF 615T, dated 17th July 2024; there is a copy of a registration certificate, dated 15th September 2021, relating to KCF 615T; there is a summons to compel attendance, issued by Mr. Godfrey Munene, of SCCIO Starehe, dated 2nd January 2025; there is a request, by letter dated 11th February 2026, from the SCCIO Starehe, for motor vehicle ownership details, of KCF 615T, addressed to the director of the National Transport and Safety Authority; a copy of records for motor vehicle KCF 615T, dated 11th February 2026; a summons to appear, in a letter, dated 8th January 2026, from the Starehe Sub-County Criminal Investigations Officer, addressed to the *ex parte* applicant; and another summons, of even date, from the same office, addressed to Emily Muthoni Memia. 5. The interested parties did not file papers, in response to the application. 6. The application is canvassed by way of written submissions, filed by the active parties. 7. The written submissions by the *ex parte* applicant, dated 27th April 2026, identify 6 issues for determination, which turn around whether the matter was reported to various police stations; whether the *ex parte* applicant was arrested and released thereafter; whether the *ex parte* applicant was re-arrested for the same offence; whether the *ex parte* applicant is the current owner of KCF 615T; and whether the said motor vehicle was registered in the name of the 1st interested party. *James Opiyo Wandayi vs. Kenya National Assembly & 2 others [*2016] eKLR, *Judicial Service Commission vs. Mbalu Mutava & another* [2015] eKLR, *Pastoli vs. Kabale District Local Government Council & others* [2008] 2 EA 300; *Patrick Ngunjiri Muiruri vs. Director of Public Prosecutions* [2017] eKLR, *Cyrus Shakhalanga Khwa Jirongo vs. Soy Developers Limited & others* [2021] KESC 32 (KLR); and *Kenya National Examinations Council; GGN & 9 others (Ex parte) vs. Republic* [1997] KECA 58 (KLR) are cited. 8. The written submissions by the respondents are dated 7th May 2026. They turn around 6 issues, on the threshold for grant of judicial review applications, ripeness of the application, the lawfulness of the detention of the motor vehicle, violation of the constitutional rights of the *ex parte* applicant, interference by the court with investigations and abuse of the court process. *Pastoli vs. Kabale District Local Government Council & others* [2008] 2 EA 300, *Municipal Council of Mombasa vs. Republic & Umoja Consultants Ltd* [2002] eKLR, *Meixner & another vs. Attorney General* [2005] KECA 292 (KLR), *Republic vs. National Environmental Management Authority ex parte Sound Equipment Limited* [2011], *Speaker of the National Assembly vs. Karume* [1992] KLR 21, *Republic vs. Commissioner of Police & another Ex Parte Monari & another* [2012] KEHC 4595 (KLR), *Anarita Karimi Njeru vs. Republic* [1972-1980] KLR 1272, *Mumo Matemu vs. Trusted Society of Human Rights Alliance & 5 others* [2013] eKLR, *Leonard Otieno vs. Airtel Kenya Limited* [2018] eKLR, *Saisi & 7 others vs.* *Director of Public Prosecutions & 2 others* [2023] KESC 6 (KLR), *Kuria & 3 others vs. Attorney General* [2002] 2 KLR 69, *William Ruto & another vs. Attorney General* [2010] eKLR, *Republic vs. Director of Public Prosecutions & 2 others ex parte Chamanlal Vrajlal Kamani & 2 others* [2015] eKLR and *Goerge Joshua Okungu & another vs. Chief Magistrate’s Court Anti-Corruption Court & another* [2014] eKLR are cited. 9. There are only 2 issues for this court to determine, whether the High Court can intervene, through judicial review, with respect to the investigative and prosecutorial functions of the respondents; and whether there is any merit in the instant application. 10. On the first issue, the starting point should be with stating that the respondents are entities within the Executive branch of the State, with clear constitutional and statutory foundations for their mandates. The court belongs to the Judicial branch of government, with its own clear constitutional and statutory lanes. The doctrine of separation of powers, set out in Article 1(3) and 174(i) of the Constitution, expects each branch of government to stick to its own lane. The provisions of the Constitution, which set up the investigative, prosecutorial and judicial authorities, all assert the decisional independence of each of these authorities, in the discharge of their respective mandates. 11. However, the independence stated in those provisions is not altogether without limits. The Constitution, at Article 10, sets out the national values and principles of governance that ought to guide public bodies in the discharge of their duties. They bind all State organs, State Officers and public officers, who have to apply the Constitution and the law, and implement public policy. The values and principles include rule of law, human dignity, equity, social justice, good governance, integrity, transparency and accountability. The independence of the State organs, entities and offices has to be exercised within the framework of these values. 12. These national values and principles find expression in the Bill of Rights, that is Chapter Four of the Constitution. The courts, particularly the High Court, are at the very core of the Bill of Rights, as the guardians of constitutional rights and freedoms, and they are where the people run to whenever their rights and freedoms are violated or threatened with violation. It is in that context that matters such as the instant one find their way in court. 13. Very often one gets the sense that some State organs, agencies and offices are uncomfortable with the court intervening into the discharge of their mandate. They view it as interference, and the respondents have said as much, in some of their filings in this matter. The court does not interfere, for interfering has the negative connotation of meddling with what it has no business in, for it merely discharges its duty, of intervening within the confines of the law. The court does not seek out or solicit for the filing of these cases, they are filed by members of the public on their own volition, and once filed, the court cannot ignore them or wish them away. 14. The court is vested with constitutional mandate, under the Bill of Rights, to entertain any claim, where rights and freedoms are alleged to have been violated or to be in danger of violation. The people equally have a right to rush to court, to challenge decisions of State organs, entities and offices, which have violated their rights or freedoms, or threaten such rights and freedoms. The State should not be irritated when members of the public file such claims, and when the courts entertain them. The Constitution has provided the framework for it, and the State has no option but to learn to live with that reality, and to abide by what the Constitution requires. 15. Executive powers and functions are limited, by the Constitution itself and any governing legislation. They are to be discharged within the narrow confines of what the Constitution and the governing legislation provides. Since they are limited, they would be open to challenge. The Constitution has provided pathways for such challenges. The key remedies available, which are identified in the Constitution, and elaborated in legislation, include *certiorari*, *mandamus*, prohibition and declarations. The *ex parte* applicant herein is seeking some of them. 16. The short of it is that the *ex parte* applicant is within his constitutional and statutory rights to challenge the discharge of the investigative and prosecutorial functions by the respondents, and the court is within its constitutional and statutory function to entertain such a challenge, with a possibility of intervening, should it turn out that there was violation of rights, or non-adherence with the laid down processes. 17. On the second issue, with respect to the merits of this case, these are judicial review proceedings. The function of the court, seized of such proceedings, is to review and evaluate the decision being challenged, not on its merits, for that lies within the mandate of the decision-maker, but on the basis of the process leading up to the making of the decision. Of course, the review or evaluation cannot possibly avoid considering some of the matters from a point of view of merit, for process is intertwined with merit. However, the core remains the process, not the merits. The parameters for review are legality, rationality and procedural unfairness. See *Pastoli vs. Kabale District Local Government Council & others* [2008] 2 EA 30. 18. There is common ground that a criminal complaint was made with the police concerning the *ex parte* applicant. It was made at different police stations. Investigations were initiated, by the police at Starehe. It would appear that the investigation file is yet to be forwarded to the 5th respondent, for a decision to be made on whether the *ex parte* applicant is to be prosecuted, and, therefore, the *ex parte* applicant is yet to be formally charged. 19. The police, represented by the 1st, 2nd, 3rd and 4th respondents, is mandated by the Constitution and the relevant statutes, to conduct investigations, and make inquiries, upon complaints of a criminal nature being made to it. A complaint was, in this case, made to the police, regarding the *ex parte* applicant. It has not been demonstrated that there was any illegality involved in the police receiving such a complaint. The police took it up, as it is its constitutional and statutory duty to, made inquiries and conducted investigations. That involved summoning the *ex parte* applicant and his spouse for interviews, essentially to evaluate the legitimacy of the complaint made against him, before diving deeper into the investigations. It also involved gathering evidential material from various places, including National Transport and Safety Authority, and from the complainants, the interested parties herein. It has not been demonstrated that in doing so the police acted illegally or outside of their constitutional and statutory mandate. 20. As indicated above, there is nothing to show that the matter has been placed before the 5th respondent, and the 5th respondent is, therefore, yet to make a decision on whether the *ex parte* applicant is to be charged or not. Indeed, as the investigation file is yet to land on the desk of the 5th respondent, it would be premature to drag him into these proceedings. Secondly, there is no basis upon which I can assess whether he has acted illegally or unlawfully, for the matter is not yet in his hands. 21. Rationality and reasonableness go together. This calls for venturing into the merits, to assess whether, based on the facts that were before the decision-maker, the decision arrived at was rational or reasonable. 22. The *ex parte* applicant appears to have an issue with the fact that the case was reported at various police stations. There is mention of Central, Kayole, Starehe and Pangani Police Stations. However, the police have no control over where complainants file their complaints. The *ex parte* applicant has named 3 individuals, in these proceedings as interested parties, ostensibly the persons who made the reports. From the material placed on record by the police, it would appear that there could be more persons involved. There is a possibility that these various civilian actors made reports individually at different police stations. The *ex parte* applicant has not demonstrated that the police had a hand in that. What is of significance is that, eventually, the matter was taken up by the police at Starehe, and the investigations are being handled from that 1 base. 23. There is the issue of the *ex parte* applicant being arrested on 2 occasions over the same offence. This should tie up with the foregoing. There are several complainants involved, with the possibility that they made separate complaints, at different police stations. The separate arrests must have been triggered by those separate reports at different stations. However, the investigations have since been centralised at Starehe, and the freedom of the *ex parte* applicant was eventually secured, through the services of his Advocate. The *ex parte* applicant has not demonstrated that the respondents were responsible for the filing of the multiple reports, which might have led to his being arrested several times. It has not been demonstrated that the police acted in cahoots with the interested parties, to have multiple reports made at different police stations, so as to occasion his harassment, by being arrested several times over the same offence or offences. The conduct of the police cannot be said to have been irrational or unreasonable in the circumstances. 24. On the ownership of the motor vehicle, I have noted that the complaint also turns on the matter of that vehicle. It would not be for me, in these proceedings, to determine the ownership of that motor vehicle, as between the *ex parte* applicant and the interested parties. Neither would it be that of the police. It would be a matter for the court that will eventually try the *ex parte* applicant, of whatever offence that the 5th respondent would lay against him, should it get to that stage. The material on record shows the motor vehicle changing registration at numerous times. The police aver that the complaint was that the vehicle was at the heart of the land sale transaction that triggered the complaint and the investigations. 25. On the allegation that the police failed to carry out proper investigations, I have noted, from the material placed on record by the respondents, that the *ex parte* applicant rushed to court, in mid-January 2026, which coincided with the period when the respondents were collecting some of the documentary evidence attached to their affidavit. It would not be accurate to say that no proper investigations were conducted, in view of the thick bundle of documentary evidence attached to the replying affidavit, collected from different sources. 26. On procedural unfairness, the *ex parte* applicant has not alluded to any incidence of the same. None of the material placed on record point to it. I shall not, in the circumstances, advert to it. 27. In view of everything said here above, I find and hold that there is no merit in the Motion, dated 13th January 2026. The same is hereby dismissed. Orders accordingly. **DELIVERED, VIA CTS, DATED AND SIGNED IN CHAMBERS, AT MILIMANI, NAIROBI, ON THIS 24TH DAY OF JULY 2026.** **W MUSYOKA** **JUDGE** **Mr. Abdirahman, Court Assistant.** **Advocates** **Mr. Makori, instructed by Ongaro & Company, Advocates for the *ex parte* applicant.** **Ms. Kihara and Mr. Mwandawiro, instructed by the Director of Public Prosecutions, for the respondents.**