https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7709

Republic v Director of Public Prosecutions & another; Obado (Ex parte) (Judicial Review Application E007 of 2025) [2026] KEHC 7709 (KLR) (28 May 2026) (Ruling) Neutral citation: [2026] KEHC 7709 (KLR) Republic of Kenya In the High Court at Kisumu Judicial Review Application E007 of 2025 JM Omido, J May 28, 2026 Between Republic Applicant and The Director Of Public Prosecutions Respondent and Michael Abala Wanga Interested Party and Joaquim Ochieng Obado Ex parte Ruling A. The Ex Parte Applicant’s Application. 1.The ex parte Applicant herein Joaquim Ochieng Obado commenced the present proceedings vide the notice of motion dated 6th May, 2025, presented under Articles 23(3)(f) & 48 of the Constitution, the Fair Administrative Action Act (Cap. 71), the Fair Administrative Action Rules and all enabling provisions of the law and seeks the following orders;a.That the Honourable Court be pleased to grant orders of mandamus directing the Respondent to institute and undertake criminal proceedings against one Michael Abala Wanga, for the offence, inter alia, of forgery contrary to Section 349 of the Penal Code, deceiving the Kisumu County Public Service Board contrary to Section 46(1)(b) and Section 46(2) of the Leadership and Integrity Act and giving false information to (a) person(s) employed by the public service contrary to Section 129(a) of the Penal Code and related offences under the Leadership and Integrity Act.b.That costs of the proceedings to be awarded to the Applicant herein. B. Grounds Upon Which The Application Is Premised. 2.The grounds upon which the application is premised are that the Applicant, a resident of Kisumu County, has instituted these proceedings pursuant to Article 22(2)(c) of the Constitution and Rule 12 of the Fair Administrative Action Rules in the public interest and for the protection of constitutional values and principles. 3.It is contended that in the year 2021, a complaint was lodged with the Ethics and Anti-Corruption Commission (EACC) by one Bob Ndolo, Executive Director of Public Property Protector (Triple P), alleging that the Interested Party Michael Abala Wanga had relied on falsified academic documents to secure appointment as City Manager of Kisumu. 4.The EACC, acting within its constitutional and statutory mandate, conducted investigations, including verification with the Kenya National Examinations Council (KNEC), which confirmed that the said academic documents were forged. 5.The Applicant avers that upon concluding its investigations, the EACC forwarded its inquiry file and recommendations to the Respondent – the Office of the Director of Public Prosecutions (ODPP) – for appropriate action, but that despite the existence of what is described as sufficient and conclusive evidence, the Respondent has failed, neglected and/or refused to institute criminal proceedings against the Interested Party. 6.According to the Applicant, the Respondent’s inaction has occasioned public concern and undermined confidence in the independence, impartiality and commitment of the ODPP to uphold public interest, the administration of justice and the need to prevent abuse of office, contrary to the expectations placed upon the office under the Constitution and statute. 7.It is further asserted that under Section 4 of the Office of the Director of Public Prosecutions Act and Article 157 of the Constitution, the Respondent is enjoined to act impartially, uphold public interest, promote public confidence and prevent abuse of legal process, and that the failure to act on the EACC’s recommendations amounts to an abdication of its constitutional and statutory mandate. 8.The Applicant maintains that although the Respondent exercises independent prosecutorial powers under Article 157(10) of the Constitution, such powers must be exercised in accordance with national values and principles of governance, including public interest as enshrined under Article 10(2) and Article 157(11), and that the delay in instituting criminal proceedings is inconsistent with those principles. 9.The Applicant contends that this Court, is obligated to uphold the Constitution and ensure that the Respondent exercises its powers lawfully, fairly and in a manner that gives prominence to public interest, thereby justifying the institution of these proceedings. 10.Finally, it is averred that the Respondent will suffer no prejudice if the orders sought are granted, and that the institution of criminal proceedings against the Interested Party would advance the principles of leadership and integrity under Chapter Six of the Constitution. The application is therefore said to have been brought in good faith and in furtherance of the public interest. C. The Ex Parte Applicant’s Supporting Affidavit. 11.The ex parte Applicant’s case as set out in the supporting affidavit that he swore on 6th May, 2025, is that he is aware, that in the year 2021 a complaint was lodged before the EACC by one Bob Ndolo, alleging that the Interested Party had used falsified academic documents to secure appointment as City Manager of Kisumu, and that a further petition was subsequently presented to the National Assembly following alleged inaction by relevant authorities. 12.The Applicant avers that the EACC, acting within its constitutional mandate under Article 79 of the Constitution, conducted investigations into the complaint, including verification with the Kenya National Examinations Council (KNEC), which confirmed that the academic documents in question were forged, whereupon the EACC forwarded its inquiry file to the Respondent for appropriate action. 13.It is his deposition that despite the said findings, which he considers conclusive, the Respondent has failed or neglected to act on the recommendations of the EACC, thereby eliciting public concern and raising questions as to the Respondent’s independence, impartiality and commitment to the administration of justice and the prevention of abuse of legal process. 14.The Applicant further deposes that the Respondent is constitutionally and statutorily bound to act in accordance with principles of impartiality, natural justice, public interest and the promotion of public confidence in the office, and that the failure to act on the EACC’s recommendations amounts to an abdication of its mandate. 15.He asserts that although the Respondent exercises independent prosecutorial powers under Article 157(10) of the Constitution and Section 6 of the Office of the Director of Public Prosecutions Act, such powers must be exercised in conformity with national values and principles of governance, including public interest under Article 10(2) and Article 157(11), and that the Respondent is therefore obliged to institute criminal proceedings in the circumstances. 16.The Applicant maintains that the delay in instituting criminal proceedings against the Interested Party is contrary to constitutional and statutory requirements, and that this Court is duty-bound to ensure that the Respondent exercises its mandate lawfully, fairly and in accordance with the Constitution. 17.Finally, the Applicant deposes that the Respondent will suffer no prejudice if the orders sought are granted, and that the institution of criminal proceedings would promote the principles of leadership and integrity under Chapter Six of the Constitution. He avers that the application has been brought in good faith and in furtherance of the public interest and the provisions of the Leadership and Integrity Act. D. The Respondent’s Grounds Of Opposition. 18.The Respondent opposes the application and to that end filed grounds of opposition dated 28th September, 2025. The application is resisted by the Respondent on the basis that it is misconceived and seeks to undermine the constitutional independence of the Office of the Director of Public Prosecutions as guaranteed under Article 157(10) of the Constitution. 19.It is contended that the decision whether or not to institute criminal proceedings falls within the exclusive prosecutorial discretion of the Respondent under Article 157(6) of the Constitution and Section 6 of the Office of the Director of Public Prosecutions Act, and that this Court lacks jurisdiction to interfere with or direct the exercise of such discretion, save in exceptional circumstances which have neither been pleaded nor demonstrated. 20.The Respondent further contends that the application is procedurally defective and incompetent for failure to first seek and obtain leave to commence judicial review proceedings as required under Order 53 Rule 1 of the Civil Procedure Rules, which leave is a mandatory prerequisite intended to filter out unmeritorious claims. 21.It is also asserted that the Applicant lacks the requisite locus standi, having failed to demonstrate any personal or direct interest in the matter or any violation of his rights, and that the application does not meet the threshold for public interest litigation. 22.It is the Respondent’s position that prosecutorial power is discretionary and not mandatory, and that an order of mandamus cannot issue to compel the exercise of such discretion in a particular manner. 23.The Respondent maintains that it is not bound by the recommendations of investigative agencies, including the EACC, and is entitled to independently evaluate evidence, assess public interest considerations and determine whether or not to institute criminal proceedings. 24.The Respondent avers that no cause of action has been disclosed, as the Applicant has not demonstrated any breach of duty, illegality or violation of rights. It is contended that the mere fact that criminal proceedings have not been instituted does not amount to a refusal to prosecute and that the application is premature and speculative, the evaluation of the inquiry file being an ongoing process requiring careful consideration. 25.The Respondent further asserts that the Applicant has failed to exhaust alternative remedies available under the law, including the option of private prosecution and statutory complaint mechanisms within the Office of the Director of Public Prosecutions, and that judicial review, being a remedy of last resort, is therefore not available in the circumstances. 26.Additionally, the Respondent challenges the competence of the supporting affidavit on the grounds that it contains hearsay, matters not within the deponent’s personal knowledge, legal arguments and inadmissible material, contrary to the provisions of Order 19 of the Civil Procedure Rules. 27.It is also contended that the application is fatally defective for non-joinder of necessary parties, including the person sought to be prosecuted and the EACC, whose participation is said to be essential for the just determination of the matter and that any orders granted in their absence would violate principles of natural justice. 28.The Respondent maintains that there has been no demonstration of illegality, irrationality or procedural impropriety to warrant judicial review intervention and that the application constitutes an abuse of the court process, being motivated by extraneous considerations and seeking to improperly influence prosecutorial decision-making. 29.Finally, the Respondent asserts that the reliefs sought, particularly the order of mandamus, are inappropriate and unavailable in law in the circumstances, and reiterates that the independence of the prosecutorial function is itself a matter of public interest which ought not to be undermined. On those grounds, the Respondent prays that the application be dismissed with costs. E. The Interested Party’s Preliminary Objection. 30.The Interested Party filed a notice of preliminary objection dated 6th October, 2025, to the application, on the ground that it constitutes an abuse of the process of the Court. It is contended that the application seeks to erode the constitutional independence of the Respondent by inviting the Court to direct the institution of criminal proceedings, contrary to the provisions safeguarding the autonomy of the Office of the Director of Public Prosecutions under the Constitution and the relevant statute. 31.The Interested Party further asserts that the application is premised on the absence of a proper investigation report having been submitted to the Respondent by the EACC as required by law, and that in those circumstances, the orders sought would improperly compel the Respondent to act without the requisite investigative foundation. 32.It is also contended that granting the orders sought would infringe upon the Interested Party’s constitutional right to a fair trial under Article 50(2) of the Constitution, by subjecting him to criminal proceedings instituted at the instance or direction of the Court rather than through the independent exercise of prosecutorial discretion. 33.On the foregoing grounds, the Interested Party prays that the application be found to be incompetent, bad in law, and an abuse of the process of the Court, and that the same be struck out with costs. F. The Interested Party’s Submissions On The Preliminary Objection. 34.The Interested Party submits in support of the preliminary objection that the present application constitutes an abuse of the process of the Court as it seeks to undermine the constitutional independence of the Office of the Director of Public Prosecutions and to violate the Interested Party’s right to a fair trial under Article 50(2) of the Constitution. 35.It is argued that Article 157(6) and (10) of the Constitution expressly vests prosecutorial powers in the Respondent, including the discretion to institute criminal proceedings, while at the same time insulating the office from the direction or control of any person or authority. Reliance is also placed on Section 6 of the Office of the Director of Public Prosecutions Act, which similarly provides that the Respondent shall not require consent for the commencement of criminal proceedings and shall not be subject to the direction or control of any person or authority in the exercise of prosecutorial functions. 36.The Interested Party contends that these constitutional and statutory provisions establish the independence of the Respondent in unequivocal terms, such that no court or person may purport to direct or compel the institution of criminal proceedings. 37.It is therefore argued that the present application improperly invites the Court to assume a role that is expressly prohibited by law, namely to direct or authorise the commencement of criminal proceedings. 38.It is further submitted that the application effectively asks the Court to act in contravention of the Constitution and statute, and to arrogate unto itself powers it does not possess, contrary to settled legal principles that courts declare the law but do not make it. 39.On that basis, it is contended that the Court lacks jurisdiction to grant the orders sought, and any such orders would amount to illegality. 40.The Interested Party additionally argues that any prosecution commenced pursuant to such orders would be tainted with illegality and would infringe upon his constitutional right to a fair trial, as it would not arise from the independent exercise of prosecutorial discretion but from judicial compulsion. 41.In conclusion, the Interested Party urges the Court to uphold the preliminary objection, find that the application is an abuse of the process of the Court, and strike it out with costs. G. The Applicant’s Submissions On The Preliminary Objection. 42.The Applicant submits that his application arises from the Respondent’s alleged failure to act on an investigation report by EACC, which the Applicant avers contains sufficient evidence and a recommendation for prosecution. 43.The Applicant states that although the Respondent has filed grounds of opposition and the Interested Party has filed a notice of preliminary objection (subject of which this ruling is made) the preliminary objection is limited to two issues, namely alleged violation of the Respondent’s independence and alleged violation of the Interested Party’s right to a fair trial under Article 50(2) of the Constitution. 44.The Applicant submits that the sole issue for determination is whether the notice of preliminary objection is properly before the Court. It is argued that a preliminary objection must raise a pure point of law based on uncontested facts and must not require the ascertainment of facts or the exercise of judicial discretion. 45.It is the Applicant’s position that the preliminary objection fails this test as it is premised on contested factual assertions, particularly the allegation that no investigation report exists from the EACC to the Respondent. The Applicant contends that whether or not such a report exists, and whether it contains conclusive findings and recommendations, are matters that can only be established through evidence and cannot properly be determined at the preliminary stage. 46.The Applicant further argues that the Interested Party’s objections require the Court to interrogate the pleadings, annexures and evidentiary material to determine the existence and effect of the EACC report, which necessarily calls for evaluation of evidence and therefore falls outside the scope of a proper preliminary objection. The Applicant submits that the issues raised by the Interested Party are suitable for determination through a replying affidavit and full hearing, not at a preliminary stage. 47.It is further submitted that granting the orders sought in the substantive motion would require the Court to exercise judicial discretion, and therefore the issues raised cannot be disposed of as pure points of law as required under the Mukisa Biscuit test. 48.In conclusion, the Applicant contends that the preliminary objection is incompetent, misconceived, and improperly before the Court, and urges that it be dismissed with costs, allowing the substantive motion to proceed to full hearing. H. The Respondent’s Submissions On The Preliminary Objection. 49.The Respondent submits that the judicial review application has been overtaken by events and is therefore moot, academic and devoid of any live controversy capable of determination by this Court. It is contended that the principal relief sought by the Applicant, namely an order of mandamus compelling the institution of criminal proceedings against the Interested Party, has already been rendered unnecessary by subsequent developments. 50.The Respondent states that following the filing of the application, it independently exercised its prosecutorial discretion and instituted criminal proceedings against the Interested Party before the Milimani Anti-Corruption Court, Nairobi. 51.It is averred that the Interested Party is now facing two separate criminal cases, MCAC E063 R v Michael Abala Wanga and MCAC E064 R v Michael Abala Wanga (the years are not provided), involving charges including forgery, uttering false documents, fraudulent acquisition of public property, abuse of office and acquisition of proceeds of crime under various statutory provisions. 52.It is further submitted that the Interested Party has already appeared before the Anti-Corruption Court, with the matters currently pending plea-taking and scheduled for mention before the competent trial court, thereby confirming that the prosecutorial action sought to be compelled has already been undertaken. 53.On that basis, the Respondent argues that there is no longer any practical utility in the continuation of these proceedings, as the Court cannot grant orders compelling an act that has already been performed. It is contended that any determination of the issues raised would amount to an academic exercise with no legal or practical consequence. 54.The Respondent further submits that courts do not determine moot or hypothetical disputes and that judicial resources ought not to be expended on matters where the controversy has ceased to exist. It is therefore argued that the application has been overtaken by events and should be struck out or dismissed on that basis alone. 55.Additionally, the Respondent maintains that the decision to institute criminal proceedings was made independently in accordance with Article 157(10) of the Constitution and without external direction or control, and that the subsequent prosecution demonstrates compliance with constitutional and statutory obligations, including the duty to act in the public interest under Article 157(11). 56.It is also contended that any attempt by the Court to interrogate or retrospectively examine the prosecutorial decision would amount to an unwarranted intrusion into the independence of the Office of the Director of Public Prosecutions. 57.In conclusion, the Respondent urges the Court to find that the application is moot and academic, having been overtaken by events, and to strike it out or dismiss it with costs. I. Analysis And Findings. 58.The Court has carefully considered the notice of preliminary objection, the rival submissions of all Counsel and the record as a whole. The objection raises several issues, but the most significant and potentially dispositive question is whether the present proceedings have been overtaken by events and are therefore moot. 59.The Respondent’s central argument is that the judicial review proceedings have been rendered moot because, subsequent to the filing of the application, the Respondent allegedly exercised its prosecutorial discretion and instituted criminal proceedings against the Interested Party. It is contended that the Interested Party is now facing charges before the Anti-Corruption Court and therefore the orders of mandamus sought, compelling the institution of criminal proceedings, have already been overtaken by events. 60.The view I take is that if this position were properly established, it would fundamentally alter the character of these proceedings. A court will not ordinarily determine academic questions or issue orders that have already been overtaken by events, as doing so would offend the principle that judicial power is exercised only in relation to live disputes requiring resolution. 61.However, the Court must first address a critical evidential concern, which is whether mootness has been properly established. 62.The alleged fact that the Interested Party has already been charged in Criminal Case Nos. MCAC E063 R v Michael Abala Wanga and MCAC E064 R v Michael Abala Wanga is introduced not through affidavit evidence, but through the Respondent’s written submissions. 63.It is a settled principle of law that submissions are not evidence. They are merely arguments based on facts that must already be properly placed before the Court through admissible evidentiary material, principally affidavits and annexures in judicial review proceedings. Parties cannot introduce new factual matters through submissions and expect the Court to act on them. 64.In the present case, the alleged institution of criminal proceedings is a material fact. It goes to the very jurisdictional question of whether the Court should proceed to hear the substantive motion or whether the matter has become moot. Such a fact must therefore be strictly proved through affidavit evidence and, where necessary, supporting documents such as charge sheets or court records. In the absence of such evidentiary foundation, the Court is left with a serious allegation that is not properly proved on the record. 65.Despite this evidentiary deficiency, the Court is alive to the fact that the issue of mootness, if established, would dispose of the entire judicial review application at a preliminary stage. It is a threshold question that goes directly to whether there remains any live controversy between the parties. It is therefore imperative that the question of mootness be determined first. 66.It would therefore be inappropriate to proceed to determine the other objections, such as jurisdiction, locus standi, procedural propriety or exhaustion, before first clarifying whether the proceedings have been overtaken by events. 67.The Court must avoid engaging in a full determination of a matter that may no longer exist in practical terms, as doing so risks rendering an advisory opinion rather than resolving an actual dispute. 68.However, given that the allegation of mootness is unsupported by affidavit evidence, the Court cannot safely make a finding that the matter is indeed moot at this stage. At the same time, the Court is mindful that if the allegation is true, continuing with the proceedings would amount to an unnecessary exercise of judicial time and resources. 69.This creates a procedural impasse that must be resolved in a manner that upholds both fair hearing principles and the efficient administration of justice. 70.It is a matter of concern that the Respondent has made a serious assertion regarding the alleged institution of criminal proceedings against the Interested Party yet failed to substantiate the same with any affidavit evidence or documentary proof. 71.Given that such a fact is central to the question of mootness and potentially dispositive of the entire application, it was incumbent upon the Respondent to place before the Court cogent and admissible evidence, rather than raising it casually through submissions. 72.The Court cannot overlook the laxity in evidentiary standards on such a material issue, particularly where the Respondent is a constitutional office expected to demonstrate the highest level of procedural diligence and fidelity to court processes. 73.Accordingly, while the Court acknowledges that mootness, if established, would be dispositive of the entire application, it is not presently supported by admissible evidence on the record. Only upon the filing of such evidence can the Court make a proper and informed determination on whether the matter is moot and/or has been overtaken by events. 74.In the circumstances, the Court is of the view that in order to properly adjudicate over this matter, the Respondent must properly place before the Court affidavit evidence demonstrating:a.Whether criminal proceedings have indeed been instituted against the Interested Party;b.If so, the specific case numbers and charges; andc.The timing of such proceedings in relation to the filing of the present judicial review application. 75.The Court therefore finds that the issue of mootness must be determined in limine, but only after the Respondent has placed the necessary affidavit evidence before the Court. Pending such clarification, the Court will defer determination of the remaining grounds raised in the preliminary objection. 76.In the obtaining situation, I will proceed to order that the Respondent files and serves an affidavit within 10 days from the date of this ruling confirming whether indeed criminal proceedings have been instituted against the Interested Party, together with supporting documents where applicable. 77.The issue of mootness shall be determined first upon consideration of that affidavit evidence. 78.Further directions on the remaining issues in the preliminary objection shall await the determination of the question of mootness. 79.This matter will be mentioned on 22nd July, 2026 for further orders. 80.It is so ordered. DELIVERED (VIRTUALLY) DATED & SIGNED THIS 28TH DAY OF MAY, 2026.JOE M. OMIDOJUDGEFor The Ex Parte Applicant: Mr. Odumbe.For The Respondent: Ms. Muema.For The Interested Party: Mr. Okero.Court Assistant: Mr. Juma.