https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9461

Rutoh v Republic (Criminal Petition E001 of 2026) [2026] KEHC 9461 (KLR) (1 July 2026) (Judgment) Neutral citation: [2026] KEHC 9461 (KLR) Republic of Kenya In the High Court at Kibera Criminal Petition E001 of 2026 DR Kavedza, J July 1, 2026 Between Geofrey Kibet Rutoh Petitioner and Republic Respondent Judgment 1.The Petitioner was charged, tried and convicted of making a document without authority contrary to section 357(a) of the Penal Code and uttering a false document contrary to section 353(b) of the Penal Code. He was sentenced to five years' imprisonment on Count I and two years' imprisonment on Count II, the sentences to run concurrently. 2.By the present constitutional petition, the Petitioner challenges the legality of his trial, conviction and sentence. He alleges that his constitutional rights under Articles 25(c), 27, 28, 29(d) and (f), 47(1), 50(2)(o), 73(2)(b), 157(11), 244, and 19 and 21 of the Constitution were violated. 3.The Petitioner contends that he was subjected to double jeopardy contrary to Article 50(2)(o) of the Constitution. He states that the charges arose from the same complaint recorded as Occurrence Book No. 04/24/52015 at Kilimani Police Station, which resulted in Kibera Chief Magistrate's Criminal Case No. 4974 of 2015. According to the Petitioner, those proceedings were later withdrawn under section 87(a) of the Criminal Procedure Code after he failed to attend court. 4.He avers that following his arrest on 2nd August 2024, he was arraigned on 6th August 2024 and the earlier proceedings were revived under Kibera Chief Magistrate's Criminal Case No. E1612 of 2024. He further contends that although the original complainant was Hon. Eng. Shadrack Mwita Manga, M.P., the subsequent proceedings named Ann Manga as the complainant, whom he maintains was only a witness. 5.The Petitioner further complains that the trial court considered an alleged decree arising from Milimani Commercial Court Civil Case No. 3764 of 2018 when imposing sentence. He maintains that the civil suit had been dismissed for want of prosecution and no decree existed. Consequently, he argues that the sentencing court relied on a non-existent decree, thereby violating his rights to fair administrative action and a fair trial. 6.The Petitioner also asserts that the existence of the civil proceedings exposes him to the risk of further imprisonment through civil execution, thereby amounting to double punishment for the same subject matter. 7.He further alleges that the police failed to comply with Article 244 of the Constitution, section 50 of the National Police Service Act and section 89(1) of the Criminal Procedure Code. He contends that Ann Manga never lodged a formal complaint with the police and therefore lacked the legal basis to be reflected as the complainant in Criminal Case No. E1612 of 2024. 8.The Petitioner further alleges that the Director of Public Prosecutions acted contrary to Article 157(11) of the Constitution by prosecuting him despite knowledge of the earlier proceedings and by excluding his alleged co-accused, Edison Kiplagat Bundotich, from the subsequent prosecution. He contends that this amounted to an abuse of the legal process. 9.He also alleges that the investigative agencies, the prosecution and the trial court failed to act objectively and impartially as required under Article 73(2)(b) of the Constitution by selectively prosecuting him while failing to take action against the alleged co-accused. The Petitioner further contends that his rights to equality, human dignity, freedom from cruel, inhuman or degrading treatment and a fair trial were infringed. He also complains that he was denied bail, his cash bail of Kshs. 200,000 was forfeited, and his motor vehicle was impounded despite having no connection with the offences charged. 10.Lastly, relying on Articles 19 and 21 of the Constitution, sections 4 and 5 of the Probation of Offenders Act, and paragraphs 3.3.4 and 3.3.5 of the Sentencing Policy Guidelines, 2023, the Petitioner urges the Court to declare his trial unconstitutional, quash his conviction and sentence, and order that he serve the remainder of his sentence on probation. 11.I have considered the petition, the arguments in support and the applicable law. 12.The Petitioner alleges that his prosecution violated Articles 25(c), 27, 28, 29, 47(1), 50(2)(o), 73(2)(b), 157(11) and 244 of the Constitution. His complaint is founded on four principal grounds. First, that he was subjected to double jeopardy after the revival of criminal proceedings arising from the same facts. Secondly, that the existence of a civil suit barred his prosecution. Thirdly, that the Director of Public Prosecutions improperly instituted the proceedings and selectively prosecuted him while failing to charge another suspect. Lastly, that the police acted unlawfully by prosecuting a matter in which, according to him, the complainant had not lodged a formal complaint. 13.The record shows that the earlier criminal proceedings were commenced in Kibera Chief Magistrate's Criminal Case No. 4974 of 2015. Those proceedings did not culminate in either a conviction or an acquittal. Instead, following the Petitioner's failure to attend court, the prosecution invoked section 87(a) of the Criminal Procedure Code and the matter was withdrawn, pending his arrest. Upon his subsequent arrest, fresh proceedings were instituted. The facts were not disputed by the Petitioner. 14.Article 50(2)(o) of the Constitution guarantees every accused person the right:“not to be tried for an offence in respect of an act or omission for which the accused person has previously been either acquitted or convicted." 15.The constitutional protection against double jeopardy only arises where an accused person has previously been acquitted or convicted of the same offence. A withdrawal under section 87(a) of the Criminal Procedure Code does not amount to either an acquittal or a conviction and does not bar the institution of subsequent proceedings. Since the earlier proceedings were merely withdrawn and never determined on their merits, the Petitioner's reliance on Article 50(2)(o) is misplaced. The Court therefore finds that his right against double jeopardy was not violated. 16.The Petitioner's second complaint is that his prosecution was unlawful because there existed a pending civil dispute arising from the same transaction. The evidence before the Court merely establishes that both civil and criminal proceedings concerned the same underlying transaction. That fact alone is insufficient to invalidate the criminal proceedings. 17.Section 193A of the Criminal Procedure Code provides:“Notwithstanding the provisions of any other written law, the fact that any matter in issue in any criminal proceedings is also directly or substantially in issue in any pending civil proceedings shall not be a ground for any stay, prohibition or delay of the criminal proceedings." 18.In Director of Public Prosecutions v Coco & 8 Others [2026] KECA 928 (KLR), citing Dande & 3 Others v Director of Public Prosecutions & 2 Others, Petition No. 4 of 2022 [2022] KESC 23 (KLR), the Supreme Court stated:“[104]The conclusion we draw from the above provision is that both civil and criminal jurisdictions can run parallel to each other and that neither can stand in the way of the other unless either of them is being employed to perpetuate ulterior motives or generally to abuse of the process of the court in whatever manner." 19.The evidence by the petitioner has not demonstrated that the criminal proceedings were commenced for an ulterior purpose, to exert pressure in the civil dispute, or otherwise amounted to an abuse of the court process. The existence or subsequent dismissal of the civil suit therefore did not render the prosecution unconstitutional. Consequently, the alleged violations of Articles 25(c), 47(1) and 50 of the Constitution have not been proved. 20.The Petitioner further contends that the Director of Public Prosecutions acted contrary to Article 157(11) by prosecuting him alone while declining to prosecute another suspect. The record, however, only demonstrates that the Director of Public Prosecutions exercised the constitutional mandate to institute criminal proceedings following police investigations. No material has been placed before the Court demonstrating that the decision to prosecute was actuated by bad faith, malice, discrimination or any improper purpose. 21.Article 157(6)(a) of the Constitution empowers the Director of Public Prosecutions to institute and undertake criminal proceedings, while Article 157(10) provides that, in exercising those powers, the Director of Public Prosecutions shall not require the consent or direction of any person or authority. The mere fact that another suspect was not charged does not, without more, render the prosecution unconstitutional. The Court therefore finds no violation of Article 157 of the Constitution. 22.The allegation that no complaint was lodged before the police is equally unsupported by the evidence. The record demonstrates that investigations were initiated following a complaint made at Kilimani Police Station. It was upon completion of those investigations that the matter was forwarded to the Director of Public Prosecutions for consideration. Under section 89(1) of the Criminal Procedure Code:“Proceedings may be instituted either by the making of a complaint or by the bringing before a magistrate of a person who has been arrested without warrant." 23.The investigation of criminal complaints falls within the constitutional mandate of the National Police Service under Article 244 of the Constitution and the National Police Service Act. Whether a witness was subsequently described as the complainant does not invalidate investigations that were otherwise lawfully commenced. The Court therefore finds no breach of Article 244 of the Constitution or section 50 of the National Police Service Act. 24.The Petitioner's remaining allegations, including violations of Articles 27, 28, 29 and 73 of the Constitution, are pleaded in broad and general terms. Apart from asserting that the prosecution was unlawful, he has not demonstrated how the conduct of the investigative agencies, the prosecution or the trial court infringed those constitutional rights. Constitutional petitions must be pleaded with precision and supported by evidence. That threshold has not been met. 25.Upon considering the record in its entirety, the Court is satisfied that the criminal proceedings were lawfully investigated, instituted and prosecuted in accordance with the Constitution and the Criminal Procedure Code. None of the constitutional violations alleged by the Petitioner has been proved. 26.Accordingly, the petition is found to be lacking in merit and is dismissed in its entirety.Orders accordingly. JUDGEMENT DATED AND DELIVERED VIRTUALLY THIS 1ST DAY OF JULY 2026..........................D. KAVEDZAJUDGEIn the presence of:Petitioner PresentMs. Otiya for the RespondentKarimi Court Assistant.