https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7795

Koskei v Director of Criminal Investigations & another (Miscellaneous Criminal Application E079 of 2025) [2026] KEHC 7795 (KLR) (3 June 2026) (Ruling) Neutral citation: [2026] KEHC 7795 (KLR) Republic of Kenya In the High Court at Eldoret Miscellaneous Criminal Application E079 of 2025 E Ominde, J June 3, 2026 Between Veronica Koskei Applicant and Director of Criminal Investigations 1st Respondent Director of Public Prosecutions 2nd Respondent Ruling 1.Before Court for determination is the Applicant’s Notice of Motion dated 2nd May 2025, wherein the Applicant seeks the followings orders:1.Spent.2.Spent.3.That an order do issue barring the Respondents from charging the Applicant or arraigning her for plea and/or or in the alternative stay of all proceedings in Eldoret Chief Magistrate Criminal Case No.1078 of 2022 pending the hearing and determination of Eldoret Environment and Land Case No. E007 of 2024.4.That costs of this application be provided for. 2.The Application is premised on the grounds on the face of it and it is further supported by the Affidavit of even date sworn by the Applicant. The Applicant deposed that she is the lawful and registered owner of land parcel Uasin/Gishu/Kahungura/396. 3.She further deposed that a while back she was summoned by the Respondent’s office to make a statement on how she acquired the aforesaid land, which she did. The stated that subsequent to that she has endured a lot harassment and visits to her workplace by officers of the 1st Respondent who threatened to arrest her on grounds that she failed to honor court summons. 4.That later in the year 2022 she presented herself before the Eldoret Chief Magistrate’s Court, Court No. 3 vide Eldoret Chief Magistrate’s Court Criminal Case No. E1078 of 2022 in which she was charged. That she was granted a cash bail of Kshs. 20,000/= but the plea was deferred. The Applicant contended that to date she has never taken plea as the same has been deferred severally because her co-accused was yet to present himself but now the plea is set to take place on 12th June 2025. 5.The Applicant further deposed that subsequently the Complainant filed a suit in the Environment and Land Court against her challenging her ownership of the subject parcel of land vide Eldoret ELC Case No. E007 of 2024 wherein she entered appearance and filed her response and the said suit which is pending hearing and determination before the ELC Court. 6.The Applicant maintained that the issues raised in the said suit touch on ownership of the suit land and relate to the charges she is facing in Eldoret Chief Magistrate Criminal Case No. E1078 of 2022. It is therefore the Applicant’s contention that it will be unfair for her to be charged over issues stemming from the ownership of the said land when the said issue is yet to be determined by the relevant Court and further that if the lower Court was to determine the same issue then it would amount to double jeopardy as the same issue will be determined by two separate Courts and may be with conflicting conclusions. Replying Affidavit 7.The Application is opposed by the 2nd Respondent vide the Replying Affidavit sworn by Prosecution Counsel, S.G. Thuo on 24th June 2025. He deposed that the entire Application is ambiguous, bad in law and premised on assumptions as nothing in the entire application has been annexed to suggest that the 2nd Respondent acted ultra vires in making the decision to charge the Applicant having been satisfied that the evidentiary and threshold tests were met before arraigning her in Court. 8.He deposed that the 2nd Respondent is apprehensive that this Application is well calculated to stifle ongoing successful investigations and prosecution into criminal aspects involving land parcel number Uasin Gishu/Kahungura/396. He further deposed that the reliefs sought herein are premised on mere feelings of being inconvenienced by investigations and potential prosecution without cogent proof of violation, infringement or contravention of any of the Applicants Constitutional rights thus this application ought to be dismissed as the Court is being led to act on mere apprehension rather than tangible evidence. 9.He urged that civil proceedings per se do not act as a bar to criminal prosecution as the two belong to different legal positions and this Honorable Court of record must be swayed into believing otherwise without proper basis as is in the present matter. Supplementary Affidavit 10.The 2nd Respondent also filed a Supplementary Affidavit sworn by Prosecution Counsel, S.G. Thuo on 9th July 2025. He deposed that the Applicant herein has unsuccessfully filed stay of proceedings seeking to stop the prosecution of Eldoret CMCR E1078 of 2022, before a different High Court in Eldoret. He stated that Eldoret HCPET No. E002 of 2023, Tom Mainja Chepkewesi vs. The Inspector general of Police and 2 Others is an exact replica of the current application for stay of prosecution of Eldoret CMCR No. E1078 of 2022. He contended that the Applicant herein is seeking conflicting decisions from cognate Courts to embarrass the judicial system by filing separate applications by separate accused persons in Eldoret CMCR No. E1078 of 2022. Determination 11.At the close of pleadings, even as Counsel for the Applicant stated that he had filed his submissions, none was traced. Counsel for the State indicated that he will rely entirely on the Affidavits filed. The court will therefore base its determination on the facts deposed in the Affidavits of the parties, the proceedings of the court and of course the law. Having carefully considered the application as well as the facts deposed in the Affidavits for and against the Application, it is my considered opinion that the only issue that arises for determination is as here under; Whether the Application is merited or whether it amounts to an abuse of the court process 12.Assertions were made by the Counsel for the State orally in open court and the same were further buttressed by the facts deposed in the Supplementary Affidavit dated 9th July 2025 that a similar application raising similar issues was already heard and determined by the Hon Justice R. Nyakundi in Eldoret HCCRA No. E002/2023 wherein an Application for orders of Certiorari seeking to quash the decision of the ODPP to charge the Applicant in Eldoret CMCR No. E1078 of 2022 was dismissed on 23rd December 2024. 13.That thereafter, another application seeking similar orders over the same issue was filed before Hon Justice J. Wananda in HCMISCCRA No. E023/2024. That the Applicant has now filed the current application. It was therefore the considered view of the Counsel for the State that with the matters standing as they are, the Applicant is actively engaged in an act of forum shopping which act amounts to a grave abuse of the court process for reasons that it is an attempt that will portray the court in bad light in the event that a parallel conflicting order is issued 14.To these assertion’s, Counsel for the Applicant Mr. Mwaka, while conceding orally in open court that indeed such an application was filed and determined by Nyakundi J as stated by Counsel for the State, said that because the parties filed the said application in person, he does not know what the issues that came up for determination and upon which the court then premised its decision were. That aside however, the court notes that even now with Mr. Mwaka appearing for the Applicants, there was no response filed to the subsequent Supplementary Affidavit by the State. 15.As matters stand therefore, these compelling issues that have been raised by the State have not been rebutted, controverted and/or denied by the Applicant. This being the case, I see no reason to belabor this matter. The facts pertaining is that similar issues involving the same party were already canvassed in a case filed before Hon Mr. Justice R. Nyakundi, the matter was heard and the application dismissed. 16.That there is, or was, as the case may be another similar matter seeking similar order was thereafter filed before Hon J. Wananda, and now this current application. In this regard, all these considered, I am satisfied, and I now hereby find that this Application now before the court is Res Judicata the decision of R. Nyakundi J, is Sub Judice the matter before J. Wananda J and that this court, which is of a court of concurrent jurisdiction with that of Hon R. Nyakundi is now functus officio. 17.The court also finds that this Application is a conscious, deliberate and gross abuse of the court process by the Applicant and that it is not only mischievous, but is also devoid of merit. Accordingly, it is now hereby dismissed in its entirety. READ DATED AND SIGNED VIRTUALLY AT BUNGOMA ON 3RD JUNE 2026E. OMINDEJUDGE