https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6602

Sadaka v Kurgat & 6 others (Petition E063 of 2024) [2026] KEHC 6602 (KLR) (15 May 2026) (Judgment) Neutral citation: [2026] KEHC 6602 (KLR) Republic of Kenya In the High Court at Mombasa Petition E063 of 2024 J Ngaah, J May 15, 2026 Between Wilson Vumbi Sadaka Petitioner and Leonard Kurgat, Director Criminal Investigation Officer, Mtwapa 1st Respondent Officer In Charge Of Station, Mtwapa 2nd Respondent Director Of Criminal Investigations 3rd Respondent Inspector General Of Police 4th Respondent Attorney General 5th Respondent Director Of Public Prosecutions 6th Respondent David Mailu 7th Respondent Judgment 1.This judgment is on the petitioner’s petition dated 11 October 2024 in which the petitioner seeks reliefs in the nature of a declaration, the order of certiorari and a permanent injunction against the respondents. The petitioner also seeks damages, including exemplary and aggravated damages, and costs of the petition. 2.The facts upon which the petition is based are that on 5 October 2024, the petitioner was unlawfully arrested and detained by an investigation officer at Mtwapa police station on allegations of obtaining registration by false pretence. The complaint against the petitioner, leading to his arrest, is alleged to have been made by an unknown complainant. 3.Two days after the arrest and, more particularly on 7 October 2024, the petitioner managed to secure his release by depositing with the police a cash bail of Kshs. 10,000/=. He was directed to appear before the Chief Magistrates Court at Shanzu on 14 October 2024 to take plea on the charge of obtaining registration by false pretence. The false registration for which the petitioner was blamed is said to be concerning parcels of land identified as Plot No. MN/IV/690 and MN/IV/692 measuring 0.9779 ha and 6.081 ha respectively. 4.According to the petitioner, despite the threatened arraignment, the anonymous complainant has not demonstrated the nature of his title to these parcels of land and, in particular, whether he has any title documents. 5.The petitioner states that these parcels of land belong to him and in the affidavit sworn in support of the petition, he has given a chronology of events that eventually culminated in his title to the properties in dispute. 6.To begin with one Omar Bin Guwale And Juma Bin Seif (both deceased) were formerly the registered legal owners or proprietors in fee simple of a piece of land known as Subdivision No. 34, Section IV, Mainland North situated within the then Mombasa Municipality in the district of Mombasa approximately measuring 24 acres; the land was registered under Title No. CR 5735/1. 7.The deceased persons died in the years 1958 and 1960 respectively and, upon their demise, the office of the Public Trustee was initially entrusted with the administration of their estates. However, the estates were eventually transferred to their heirs who were named as Said Seif Juma, Jumaa Hamad Suleiman, Kibwana Ahmad Suleiman, Mishi Sefu Jumaa, Sheikh Ahmed Twahir And Mohamed Juma Mohamed. 8.On 22 November 1999, the beneficiaries of the deceased’s estate sold part of it to the petitioner; to be precise, they sold to the petitioner 12 acres of Plot No. 34 Section IV situated within Kidutani for a sum of Kshs. 300,000/=. The land was transferred to the petitioner’s name. 9.A dispute over ownership of the land arose between the petitioner and one Billy Tuva Kalume. It was adjudicated in Kilifi Magistrates Court Environment and Land Court Case No. 118 of 2018. The suit was determined in the petitioner’s favour on 19 March 2024. 10.It is against this background that the petitioner states that the allegations against him are unjustified considering that he has been adjudged by a court of competent jurisdiction to be the lawful registered owner of the property whose registration the petitioner is alleged to have falsified. The petitioner’s position is that his arrest, threatened arraignment and prosecution are actuated by malice and only meant to coerce the petitioner into relinquishing ownership of the subject parcel of land. 11.The Attorney General has opposed the petition and filed grounds of objection. His position is that the petition is incompetent, bad in law, misconceived and an abuse of the court process of this Honourable Court; that the petition seeks to undermine the independence of the 1st , 2nd 3rd , 4th and 7th respondents in discharge of their functions contrary to article 245 of the Constitution; and, that the petition further offends the provisions of Section 8,8A, 23 and 24 of the National Police Service Act No. 11 A of 2011. 12.The Attorney General also filed a replying affidavit on behalf of 1st , 2nd , 3rd , 4th and 7th respondents. The affidavit has been sworn by police constable David Mailu, the 7th respondent in this petition, who has stated that he is attached to Mtwapa police station and that he was the investigations officer in charge of the investigations into the complaint made against the petitioner. 13.According to constable Mailu, the complaint was reported by one Dennis Billy Thuva at the police station on 11 September 2024 and booked as OB61/11/09/2024. Thuva’s complaint was that the petitioner had encroached or trespassed on the complainant’s land. 14.Preliminary investigations revealed that the petitioner had committed the offence of obtaining land registration by false pretences contrary to section 320 of the Penal Code, cap. 63 and, therefore, on 5 October 2024, the petitioner was arrested and booked for questioning. However, the petitioner declined to answer any questions or write any statement. Instead, he requested to be given time to respond to the allegations made against him and produce documents in support of his case. On 6 October 2024, the applicant was released after depositing a cash bail of Kshs. 10,000/=. 15.Constable Mailu swore further that the investigations into the complainant’s complaint against the petitioner were still underway and no determination had been made to arrest, charge or prosecute the petitioner and, for this reason, the Attorney General has denied the petitioner’s claim that he was summoned to appear before the Chief Magistrates Court at Shanzu law courts to take plea on a charge of obtaining registration by false pretences. 16.Apart from responding to the petitioner’s petition, the Attorney General also filed a motion dated 25 October 2024 in which she sought to have the names of the 1st and 7th respondents struck out from the suit. According to the Attorney General, the 1st and 7th respondents are police who officers who cannot be sued in their personal capacity for actions taken in exercise of their statutory mandate. I took the view that the issues raised in the application could be disposed of alongside the petition and directed that both the application and the petition be disposed of together. 17.The 6th respondent adopted the affidavit sworn by constable Mailu in his answer to the petition. 18.I note from constable Mailu’s replying affidavit that although he has presented the picture that the petitioner was still under investigations at the time he swore his affidavit, a copy of the extract of the report when the applicant was arrested and detained by the police and which is exhibited to constable Mailu’s affidavit suggests that the investigations had been concluded and that the police had made up their mind to charge the petitioner with the offence of obtaining registration by false pretence. The Occurrence Book extract reads as follows:“OB 61/11/09/2024 AT 1702 HRSREPORT MADE: To the station is one Dennis Billy Thuva of ID no 28531185 and Tel no 0741487787, a resident of Mtwapa town. He does submit a report that during the year of 1992 his father Billy Thuva Kalume bought a piece of land from one Said Bin Seif for the title number CR 573. The said reportee says that they are on the process of owning the said title deed but they have realized that there is someone who owns the said title and they don't know who he is. They also say that the said land is sub-divided into plots where the said protrude(sic) also have plot no 34/IV/ MN. They are now at the police station seeking for further police assistance.” 19.The next step after the complaint was made is captured in the occurrence book as follows:“OB 52/05/10/2024AT 1605 HRSACTION TAKEN/PRISONER IN: Under the instruction of the SCCIO Kilifi South Mr. Kurgat now SGT Hassan, CPL Enos, PC(W) Karashi and PC Mailu do book in one prisoner namely Wilson Sadaka Vumbi who is to be charged with the offence of obtaining land registration by false pretence vide OB 62/11/09/2024. Searched and placed in cell by PC Moses while appearing normal.” 20.This statement contradicts constable Mailu’s deposition that the investigations were ongoing at the time the petition was filed or at the time he swore and filed his affidavit. And although constable Mailu has denied that the petitioner was directed to attended court to take plea on a charge of obtaining registration by false pretence, a receipt issued by the police acknowledging the petitioner’s deposit of Kshs. 10,000/= paid on account of his cash bail shows that the petitioner was released on condition that he was to appear before the magistrate’s court at Shanzu on 14 October 2024 at 8 AM to answer to this particular charge. A copy of the receipt has been exhibited to the petitioner’s affidavit in support of the petition. 21.Yet in his affidavit and in what is obviously and blatantly contrary to this evidence constable Mailu has sworn as follows:“ 16.That in further response, the Applicant and/or Petitioner has not produced any lawful summons in the prescribed form to appear before Shanzu Chief Magistrates Court neither has he demonstrated that his arrest was unlawful contrary to the law. 20.That in further response, the Petitioner has not proved and/or demonstrated through any evidence whatsoever of any unlawful or malicious arrest, where investigations are yet to be concluded an inquiry file/investigative file transmitted to the 6th Respondent for the decision to charge and prosecution thereof.” 22.What I make of constable Mailu’s depositions is that while the officer acknowledges that the petitioner could only have been lawfully arrested and charged after the conclusion of investigations and at the direction or on the advice of the Director of Public Prosecutions, the petitioner was not only arrested and detained but was to be charged notwithstanding that the fact that the investigations had neither been concluded nor the Director of Public Prosecution given his advice on whether the petitioner could be charged. 23.If the 1st , 2nd , 3rd , 4th and 7th respondents were aware and convinced that the complaint against the petitioner required investigations and a decision by the Director of Public Prosecutions to charge the petitioner with the offence of obtaining registration by false pretence had not been made but still proceeded to arrest the petitioner, put him in custody and only released him after the deposit of a cash bail and on condition that he would appear in court in court to answer to a charge that had not been approved, they certainly acted contrary to article 157(6) of the Constitution. This provision of the law vests in the Director of Public Prosecutions the power to prosecute and reads as follows:The Director of Public Prosecutions shall exercise State powers of prosecution and may—a.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;b.take over and continue any criminal proceedings commenced in any court (other than a court martial) that have been instituted or undertaken by another person or authority, with the permission of the person or authority; andc.subject to clause (7) and (8), discontinue at any stage before judgment is delivered any criminal proceedings instituted by the Director of Public Prosecutions or taken over by the Director of Public Prosecutions under paragraph (b).Needless to say, the 1st , 2nd , 3rd , 4th and 7th respondents could not charge the petitioner without investigations on a non-cognizable offence. 24.That aside, there is evidence that the dispute between the complainant and the petitioner over ownership of certain parcels of land is a matter that has been adjudicated upon and a determination made in the Chief Magistrates Court at Kilifi in Enviorenment and Land Case No. E118 of 2018; Wilson Vumbi Sadaka versus Billy Thuva Kalume. A copy of the judgment rendered in this matter has been exhibited to the petitioner’s affidavit and it shows that the case was determined in the petitioner’s favour on 19 March 2024.The judgment reads, in part, as follows:“The suit as per plaint dated 28/3/2018 and filed in court on the same date. The plaintiff prays for judgment against the defendant as hereunder:(a)A permanent injunction restraining the defendant and/or his servants from trespassing upon, subdividing, alienating, cultivating on or in any other manner interfering with the former’s enjoyment of parcels of land known as MN/IV/690 and MN/IV/692 situate at Kidutani in Kilifi county.(b)A declaration that the plaintiff is the owner of the above parcels of land (hereinafter “the suit property”)(c)The costs of the suit and interest at court rates.(d)Any other relief the court deems fir to grant.” 25.In his final determination, the learned Chief Magistrate Hon. J.M. Nang’ea (now a judge of this Honourable Court) held:“The upshot is that the claim is allowed with costs to be borne by the defendant who unnecessarily caused institution of the suit.” 26.If a court of competent jurisdiction has made a determination on the ownership of land parcels MN/IV/690 and MN/IV/692, the 1st , 2nd , 3rd , 4th and 7th respondents cannot purport to overlook the judgment and ignore the court’s findings on the petitioner’s proprietary rights in the properties. Nowhere in the affidavits filed on the respondents’ behalf or in their pleadings has it been suggested that the judgment affirming the petitioner’s ownership of these properties was fraudulently obtained. 27.No doubt, the court must have considered the evidence with which it was presented by both the petitioner and the complainant before coming to the conclusion that the petitioner is the rightful owner of these properties. If the complainant had any issue to take with the documents establishing the petitioner’s entitlement to the properties, including any evidence to the effect that the ownership of the properties may have been obtained fraudulently, he was entitled to present it before court for the court’s assessment or evaluation before reaching its determination. 28.I must not be mistaken to be saying that the police cannot investigate a crime suspected to have been committed in obtaining any evidence presented in a matter of which a civil court is seized; what I am saying is that a criminal process cannot be employed to overturn a judgment that has been reached through due process and, at any rate, such a judgment is binding not only to the parties to the suit but also, for our purposes, the 1st , 2nd , 3rd , 4th and 7th respondents as well. 29.Invoking a criminal process for purposes other than those of achieving criminal justice is clearly misuse of prosecutorial power and an abuse of the due process, not least, the criminal justice system. 30.Under section 44 of the Evidence Act, cap. 80 the determination that has been given in Chief Magistrates Court at Kilifi in Environment and Land Case No. E118 of 2018 is not only admissible in evidence but more importantly, it is also conclusive proof of, among other things, the acquisition and ownership of the properties which are the subject of the criminal complaint against the petitioner. This section reads as follows:44.Judgments in rem(1)A final judgment, order or decree of a competent court which confers upon or takes away from any person any legal character, or which declares any person to be entitled to any such character, or to be entitled to any specific thing, not as against any specified person but absolutely, is admissible when the existence of any such legal character, or the title of any such person to any such thing, is admissible.(2)Such judgment, order or decree is conclusive proof—(a)that any legal character which it confers accrued at the time when such judgment, order or decree came into operation;(b)that any legal character to which it declares any such person to be entitled accrued to that person at the time when such judgment, order or decree declares it to have accrued to that person;(c)that any legal character which it takes away from any such person ceased at the time from which such judgment, order or decree declared that it had ceased or should cease;(d)that anything to which it declares any person to be so entitled was the property of that person at the time from which such judgment, order or decree declares that it had been or should be his property. 31.The purported offence with which the petitioner was to be charged is directly related to the acquisition and ownership of the properties that have been found to belong to the petitioner; at least there is no evidence to the contrary. If the 1st, 2nd, 3rd, 4th and 7th respondents had undertaken elementary investigations on the complainant’s complaint and forwarded their investigations report to the Director of Public Prosecutions, it is unlikely that the Director of Public Prosecutions would have preferred a charge of obtaining registration of the properties in issue by when a court of competent jurisdiction has decided on the ownership of the properties. 32.For the purpose of determination of the petition before court, I would say that to the extent that the complainant’s complaint relates to questions that have been conclusively determined in a civil suit between the complainant and the petitioner, the purported criminal charge for which the petitioner was to be arraigned, serves no other purpose than question the judgment of a court of competent jurisdiction. Where there is such a clear abuse of power by a public authority, this Honourable Court is bound to intervene and stop the authority in its tracks. 33.I find the words of Lord Salmon in D.P.P versus Humphrey’s (1976) 2 ALL ER 497 at 527-8 apt on this point. The learned expressed himself as hereunder:“A judge has not and should not appear to have any responsibility for the institution of prosecutions, nor has he any power to refuse to allow a prosecution to proceed merely because he considers that as a matter of policy, it ought not to have been brought. It is only if the prosecution amounts to an abuse of the process of the court and is oppressive and vexatious that the judge has the power to interfere. Fortunately, such prosecutions are hardly brought but the power of the court to prevent them is, in my view, of great constitutional importance and should be jealously preserved”. (Emphasis added) 34.In the same breath, I find the decision of this Honourable Court in Kuria & 3 Others vs. Attorney General (2002) 2 KLR 69 to be quite befitting; it that case it was held as follows:“The Court has power and indeed the duty to prohibit the continuation of the criminal prosecution if extraneous matters divorced from the goals of justice guide their instigation. It is a duty of the court to ensure that its process does not degenerate into tools for personal score-settling or vilification on issues not pertaining to that which the system was even formed to perform...A stay (by an order of prohibition) should be granted where compelling an accused to stand trial would violate the fundamental principles of justice which underlie the society’s senses of fair play and decency and/or where the proceedings are oppressive or vexatious...The machinery of criminal justice is not to be allowed to become a pawn in personal civil feuds and individual vendetta. It is through this mandate of the court to guard its process from being abused or misused or manipulated for ulterior motives that the power of judicial review is invariably invoked so as to zealously guard its (the Court’s) independence and impartiality (as per section 77(1) of the Kenya Constitution in relation to criminal proceedings and section 79(9) for the civil process). The invocation of the law, whichever party in unsuitable circumstances or for the wrong ends must be stopped, as in these instances, the goals for their utilisation is far from that which the courts indeed the entire system is constitutionally mandated to administer......” 35.The same point was expressed in Republic vs. Chief Magistrate’s Court at Mombasa Ex Parte Ganijee & Another (2002) 2 KLR 703, where it was held as follows:“It is not the purpose of a criminal investigation or a criminal charge or prosecution to help individuals in the advancement of frustrations of their civil cases. That is an abuse of the process of the court. No matter how serious the criminal charges may be, they should not be allowed to stand if their predominant purpose is to further some other ulterior purpose. The sole purpose of criminal proceedings is not for the advancement and championing of a civil cause of one or both parties in a civil dispute, but it is to be impartially exercised in the interest of the general public interest. When a prosecution is not impartial or when it is being used to further a civil case, the court must put a halt to the criminal process. No one is allowed to use the machinery of justice to cause injustice and no one is allowed to use criminal proceedings to interfere with a fair civil trial. If a criminal prosecution is an abuse of the process of the court, oppressive or vexatious, prohibition and/or certiorari will issue and go forth... When a remedy is elsewhere provided and available to person to enforce an order of a civil court in his favour, there is no valid reason why he should be permitted to invoke the assistance of the criminal law for the purpose of enforcement. For in a criminal case a person is put in jeopardy and his personal liberty is involved. If the object of the appellant is to over-awe the respondent by brandishing at him the sword of punishment thereunder, such an object is unworthy to say the least and cannot be countenanced by the court... The predominant purpose is to further that ulterior motive and that is when the High Court steps in...” 36.Based on the material presented before court, I am persuaded that the arrest and detention of the petitioner in custody on a complaint of what would amount to non-cognizable offence if proved without any sort of investigations was in not in good faith; the 1st, 2nd, 3rd, 4th and 7th respondents’ conduct is tainted with malice and was for a collateral purpose. It was a repercussion of the petitioner’s successful quest for the ownership of the suit properties in Kilifi Magistrates Court Environment and Land Court Case No. 118 of 2018. It was in the words of this Court inRepublic vs. Chief Magistrate’s Court at Mombasa Ex Parte Ganijee & Another (2002) 2 KLR 703 meant to help the complainant in the advancement of his frustrations arising from the outcome of a civil case in which he lost. 37.I agree with the petitioner that the net result of the 1st , 2nd , 3rd , 4th and 7th respondents’ and the complaints’ conduct was a violation of the petitioner’s constitutional rights as particularised in his petition. In particular, the petitioner’s arrest, detention and threatened arraignment and prosecution violates the petitioner’s right to a fair administrative action under Article 47 of the Constitution which provides, inter alia, that every person has the right to administrative action that is expeditious, efficient, lawful, reasonable and procedurally fair and that if a right or fundamental freedom of a person has been or is likely to be adversely affected by administrative action, the person has the right to be given written reasons for the action. 38.Going by the 1st , 2nd , 3rd , 4th and 7th respondent’s own affidavit, these respondents had no reason to offer for arraigning the petitioner without investigations on a purported complaint and without the sanction of the Director of Public Prosecutions. By their conduct of arresting, detaining the petitioner and requiring him to attend court to take plea on a rather unfounded charge, the respondents violated the petitioner’s right to a fair hearing. 39.By arresting and holding the petitioner in a cell without probable cause or justification, the respondents violated the petitioner’s right to dignity which is guaranteed under article 28 of the Constitution and also infringed on his right to freedom and security of the person, the right not to be treated in a cruel, inhuman or degrading manner under article under Article 29 of the Constitution. The unjustified arrest of the petitioner violated his right to movement under Article 39 of the Constitution. 40.Further, the arrest, detention and threatened prosecution of the petitioner on what, for all intents and purposes, were unjustified allegations of unlawfully obtaining the registration of the parcel of land by false pretence in spite of a judgment from a court of competent jurisdiction affirming the petitioner’s ownership of the properties in issue, violated the petitioner’s right to property under Article 40. 41.The result of all these violations is that the petitioner has made out case for the grant of the reliefs he seeks in his petition. 42.As far as damages are concerned, it has been established that in the absence of any basic evidence to support the complainant’s complaint, the respondents were motivated by malice when they arrested and held the petitioner in custody for two nights. From their own affidavit, the respondents were well aware that the petitioner could not be charged before they conducted investigations into the complainant’s complaint and, more importantly, before they obtained the greenlight from the Director of Public Prosecutions; yet the respondents held the petitioner in custody ostensibly to charge him notwithstanding that no investigations had been undertaken and neither had the consent of the Director of public Prosecutions to prosecute the petitioner been obtained. 43.Exhibited to police constable Mailu’s affidavit are copies of two letters by the 1st respondent and police inspector Veronica Kapoko, respectively dated 12 September 2024, and 29 October 2024 addressed to the Registrar of Lands, Mombasa seeking from him particular documents relating to the history and ownership of the parcels of land in question. Constable Mailu has not gone further to state whether the Registrar of Lands responded to the letters and, if so, whether the response elicited any suspicion of the offence of obtaining registration by false pretences having been committed. The only inference that one can draw from the constable’s silence on whether the Registrar of Lands responded is that if there was any response, it was favourable to the petitioner. On the other hand, if there was no response, there was no basis upon which the petitioner was arrested and detained on suspicion of having obtained registration by false pretences. 44.It follows that the 1st , 2nd , 3rd , 4th and 7th respondents were not only aware of what they were doing but they also foresaw or ought to have foreseen the possibility that they were acting wrongfully; they nonetheless continued to act with sheer recklessness not wary of the consequences of their conduct. 45.The petitioner’s counsel did not submit on the quantum of damages payable but I would opine that a global award of Kshs. 500,000/= would be a near adequate compensation for damages that the respondent suffered as a result of violation of his constitutional rights. 46.As far as the 1st and 7th applicant’s application dated 25 October 2024 is concerned, I am persuaded that having reached the conclusion that except for the Director of Public Prosecutions and the Attorney General, the rest of the respondents were malicious in their conduct, there is no reason why they should not bear the consequences for their actions. Section 66 (1) of the National Police Act does not insulate officers who act in bad faith from personal liability. This section reads as follows:66.Protection from personal liability(1)No matter or thing done by a member, employee or agent of the Service shall, if the matter or thing is done in good faith for the performance and execution of the functions, powers or duties of the Service, render the officer, employee or agent personally liable to any action, claim or demand whatsoever. (Emphasis added. 47.I am not satisfied that the 1st and 7th respondents acted in good faith in their conduct toward the petitioner. Accordingly, I do not find any merit in their application and, it is, therefore, dismissed with costs. 48.In the final analysis, the petitioner’s petition is hereby allowed and, except for the Director of Public Prosecutions, judgement is hereby entered against all the respondents, jointly and severally, in the following terms:a.A declaration is hereby issued that the respondents violated the Petitioner's rights under Article 28, 29, 40, 47, and 49(1)(a) of the Constitution;b.An order of certiorari is hereby issued quashing the decision of Mtwapa Police Station DCI directing the petitioner to attend court at Shanzu Chief Magistrates court, or any other court for that matter, to take plea on a charge of obtaining registration by false pretence with respect to land parcels MN/IV/690 and MN/IV/692 when no investigations have been undertaken or the consent or direction to prosecute obtained from the Director of Public Prosecutions.c.An order of prohibition is hereby issued prohibiting the respondents from harassing the Petitioner and from arraigning or prosecuting him in Shanzu Chief Magistrate's Court, or any other court for that matter, over allegations of obtaining registration by false pretences with respect to land parcels MN/IV/690 and MN/IV/692;d.General damages of Kshs. 500,000/=e.Costs and interest calculated at court rates from the date of this judgment. SIGNED, DATED AND DELIVERED ON 15 MAY 2026NGAAH JAIRUSJUDGE