Waithira & another v Directorate of Public Prosecution & 5 others (Petition E004 of 2026) [2026] KEHC 9865 (KLR) (4 June 2026) (Ruling)

Waithira & another v Directorate of Public Prosecution & 5 others (Petition E004 of 2026) [2026] KEHC 9865 (KLR) (4 June 2026) (Ruling) Neutral citation: [2026] KEHC 9865 (KLR) Republic of Kenya In the High Court at Mombasa Petition E004 of 2026 WM Kagendo., J June 4, 2026 Between Irene Bernadette Waithira 1st Petitioner David Mureithi Kanyi 2nd Petitioner and The Directorate of Public Prosecution 1st Respondent Jennifer Atieno Adera & 4 others & 4 others 2nd Respondent Ruling Introduction 1.Before this Court is a Notice of Motion dated 22nd April 2026 brought under Articles 27, 29, 31, 39(1), 47 and 49 of the Constitution of Kenya, the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013 (the Mutunga Rules), the Criminal Procedure Code, the National Police Service Act and all other enabling provisions of the law. 2.The Petitioners seek the following orders:1.Spent.2.That this Honourable Court issues conservatory orders restraining the 1st–6th Respondents, their servants, agents and associates from arbitrary arrest, stalking, hounding, harassing, intimidating, conducting forcible entry, search or seizure at the Petitioners' premises, retaining their title deeds and client files, using seized items as incriminating evidence, broadcasting or profiling the Petitioners, acting as debt collectors, or in any other manner infringing on the Petitioners' constitutional rights and freedoms pending the hearing and determination of this application and Petition.3.That this Honourable Court issues a mandatory order compelling the 1st and 2nd Respondents to immediately return all items allegedly seized during the raid conducted on 2nd April 2026 pending the hearing and determination of this Petition.4.That this Honourable Court issues an interim declaration that the plea-taking process and continued progression of criminal charges arising from the actions commenced on 2nd April 2026 are unfounded, malicious, oppressive and unconstitutional and that the summons to attend court for plea on 18th March 2026 and all consequential actions of the 1st–3rd Respondents stand terminated pending the hearing and determination of this Petition.5.Costs of the application. Background 2.The application is supported by the affidavit sworn by the 1st Petitioner, Irene Bernadette Waithira, on 22nd April 2026. 3.The 1st Petitioner deposes that on 4th March 2026, more than five plain-clothed individuals who later identified themselves as police officers attached to the Directorate of Criminal Investigations under the command of Inspector Ndegwa forcibly gained entry into the 2nd Petitioner's site office, which also served as the 1st Petitioner's storage facility. 4.According to the Petitioners, the officers broke the metallic access door, arrested the 2nd Petitioner, escorted him to Kisauni DCI offices and carted away files, title deeds, electronic devices, construction materials and other items without issuing any inventory. 5.The Petitioners further contend that on 24th January 2026, one Vincent Njoroge, a sales representative of the 2nd Petitioner, was induced by persons later identified as DCI officers to make telephone calls to the 2nd Petitioner in an effort to secure his surrender to the police. 6.It is further alleged that on 2nd April 2026, the same officers returned to the premises, scaled the perimeter wall, broke into the premises and conducted a search in the absence of both Petitioners. 7.The Petitioners maintain that the dispute arises from a commercial transaction relating to the sale of off-plan residential maisonettes developed by Kee Plants (K.P.) Properties Limited on Land Reference Number MN/I/343, Bamburi Parkside Phase IIA, Mombasa. 8.The Petitioners contend that the 4th, 5th and 6th Respondents entered into sale agreements for the purchase of residential units and that any dispute arising therefrom is purely civil in nature. They allege that the criminal justice system is being employed as a debt collection mechanism contrary to the Constitution and the rule of law. 9.The Petitioners further state that the 2nd Petitioner was directed to attend Shanzu Law Courts on 18th March 2026 for plea taking but that no plea was taken and no criminal proceedings were commenced despite his attendance. 10.The 1st Petitioner additionally contends that seizure of client files, title deeds, and confidential legal documents has interfered with her legal practice and violated the advocate-client privilege protected under the Evidence Act. Response By The 1st And 2nd Respondents 11.The application is opposed. 12.The 1st and 2nd Respondents filed a Replying Affidavit sworn by Martin Ndegwa, SCCIO No. 233801, attached to the Directorate of Criminal Investigations, Kisauni. 13.The deponent categorically denies the Petitioners' allegations and describes them as fabrications, distortions and misrepresentations intended to mislead the Court. 14.He specifically denies that any raid was conducted at the Petitioners' premises on either 4th March 2026 or 2nd April 2026 and denies that any property was seized by officers attached to the 1st and 2nd Respondents. 15.The Respondents further contend that the application is incompetent because the 1st Petitioner allegedly lacked authority to swear affidavits on behalf of the 2nd Petitioner. 16.The deponent, however, states that investigations were commenced following a complaint lodged by the 4th Respondent on 29th July 2025 vide OB No. 46/25/09/2025. The complaint alleged that the 2nd Petitioner obtained Kshs. 1,500,000/= from the complainant by falsely pretending that he could sell to her a residential property developed on Bamburi Phase IIA MN/I/343. 17.The deponent further states that investigations were lawfully undertaken pursuant to Article 245 of the Constitution and the National Police Service Act and that the 2nd Petitioner was arrested on 4th March 2026 and subsequently released on cash bail. 18.The deponent further avers that the complainant and the 2nd Petitioner subsequently reached a settlement under which the 2nd Petitioner agreed to complete construction of the residential unit and that, consequently, no further action was pursued by the investigating authorities. Grounds Of Opposition 19.The 1st and 2nd Respondents filed Grounds of Opposition dated 15th May 2026 contending that:a.The application is incompetent, misconceived, and an abuse of the court process.b.The application undermines the constitutional independence of the National Police Service under Article 245 of the Constitution.c.The application offends the provisions of the National Police Service Act.d.The Petitioners have failed to make full and frank disclosure and have distorted material facts. Preliminary Objection 20.The 1st and 2nd Respondents further raised a Preliminary Objection dated 15th May 2026, contending that the 1st Petitioner lacked authority to swear the supporting affidavit on behalf of the 2nd Petitioner. Issues For Determination 21.Having considered the Notice of Motion, affidavits, grounds of opposition, preliminary objection and submissions of the parties, the following issues arise for determination:a.Whether the Preliminary Objection is merited.b.Whether the Petitioners have established a prima facie constitutional case warranting the grant of conservatory orders.c.Whether the balance of convenience favours preservation of the status quo pending hearing of the Petition.d.What orders ought to be issued. Analysis And Determination I. The Preliminary Objection 22.The law regarding preliminary objections is settled by the celebrated decision in Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd [1969] EA 696. 23.A preliminary objection must raise a pure point of law capable of disposing of the matter without recourse to evidence. 24.The objection before this Court concerns whether the 1st Petitioner possessed the authority to swear the affidavit on behalf of the 2nd Petitioner. 25.That issue is not a pure point of law. It inevitably requires inquiry into facts and circumstances surrounding the relationship between the Petitioners and the instructions given. 26.Further, the 1st Petitioner is not merely counsel on record. She is a substantive petitioner and expressly deposes that she has personal knowledge of the matters complained of. 27.The Court further notes that constitutional litigation is governed by the Constitution and the Mutunga Rules, whose overriding objective is the attainment of substantive justice. 28.Article 159(2)(d) of the Constitution requires courts to administer justice without undue regard to procedural technicalities. Constitutional petitions ought not to be defeated by technical objections where no demonstrable prejudice has been shown. 29.This Court also observes that constitutional and criminal proceedings should not be unnecessarily constrained by procedural requirements developed primarily within ordinary civil litigation. The Constitution ushered in a transformative legal order where procedural rules exist to facilitate, rather than hinder, access to justice. 30.Indeed, there may be merit in future legislative consideration being given to modernisation of certain provisions of the Criminal Procedure Code so as to align criminal procedure with contemporary constitutional standards and the realities of constitutional litigation. 31.The Preliminary Objection is therefore without merit and is hereby dismissed. II. The Threshold for Conservatory Orders 32.The principles governing conservatory orders are now settled. 33.In Gatirau Peter Munya v Dickson Mwenda Kithinji & 2 Others [2014] eKLR, the Supreme Court held that conservatory orders are intended to preserve the subject matter of litigation and maintain the status quo pending determination of constitutional questions raised before the Court. 34.The applicant must demonstrate:a.A prima facie case with a likelihood of success;b.A real danger of prejudice if the orders are not granted; andc.That the public interest and balance of convenience favour the grant of the orders sought. I. Whether the Petition Raises an Arguable Constitutional Case 35.At this interlocutory stage, the Court is not required to make final findings on contested facts or determine the merits of the Petition. 36.The Court need only determine whether the Petition raises serious constitutional issues deserving consideration at a substantive hearing. 37.The Court notes a significant inconsistency in the position adopted by the 1st and 2nd Respondents. 38.On one hand, the investigating officer categorically denies conducting any raid, denies any seizure of property and denies unlawful entry into the Petitioners' premises. 39.On the other hand, the same Respondents seek to justify the arrest of the 2nd Petitioner and their conduct on the basis that they were undertaking lawful investigations pursuant to a complaint lodged at Kisauni DCI. 40.The Respondents cannot simultaneously deny any involvement in the acts complained of while at the same time asserting that whatever actions were undertaken were lawful exercises of investigative authority.Put differently, the Respondents appear to be blowing both hot and cold. 41.Either the impugned actions never occurred, or they occurred pursuant to lawful investigations. Both positions cannot comfortably coexist without evidential clarification. 42.This contradiction alone demonstrates the necessity of a substantive hearing where evidence may be tested and factual disputes resolved. 43.The Court further notes that the 2nd Petitioner alleges that he was directed to attend court for plea taking, attended court, and yet no plea was ultimately taken. The Respondents have not adequately addressed that allegation. 44.Equally significant is the Respondents' own admission that a complaint was lodged, investigations commenced, the 2nd Petitioner was arrested, and that the parties subsequently reached a settlement, following which no further action was pursued. 45.This Court is unable at this stage to determine whether the complaint discloses a genuine criminal offence warranting prosecution or whether the criminal process is being employed as a means of exerting pressure in a commercial dispute. 46.That question lies at the core of the Petition and can only properly be resolved after hearing all parties. 47.The Court is therefore satisfied that the Petition raises serious constitutional questions concerning Articles 27, 29, 31, 47 and 49 of the Constitution which warrant preservation pending hearing. IV. Criminal Process and Commercial Disputes 48.The Court fully appreciates that the National Police Service and the Director of Public Prosecutions possess independent constitutional mandates.However, constitutional independence does not place investigative and prosecutorial decisions beyond judicial scrutiny. 49.Where allegations are raised that the criminal justice system is being employed for collateral purposes, including debt collection or arm-twisting in commercial disputes, the Court has a constitutional duty to intervene and examine the complaint. 50.The Court is not presently determining that the complaint lodged by the 4th Respondent is illegitimate. Neither is the Court determining that the Petitioners have established violation of their constitutional rights. 51.What the Court finds is that there exists sufficient uncertainty regarding the nature of the complaint, the investigations undertaken, the alleged settlement, and the subsequent conduct of the parties to warrant preservation of the status quo pending full hearing. 52.The Court must first satisfy itself that there exists a genuine criminal complaint founded upon criminal culpability and not merely an attempt to leverage the coercive power of the criminal justice system in aid of a commercial dispute. V. Seized Documents and Advocate-Client Privilege 53.The Petitioners seek the immediate return of documents, title deeds, client files, and electronic devices allegedly seized by the Respondents. 54.However, the Respondents have expressly denied conducting the alleged searches and have equally denied seizing any property.The Court is therefore confronted with a contested factual issue. 55.To order the immediate release of the documents at this stage would effectively require the Court to make a final factual finding that the Respondents are indeed in possession of the documents.Such a finding cannot properly be made on affidavit evidence alone and must await the determination of the Petition. 56.The Court therefore declines to issue a mandatory order compelling release of the alleged documents at this interlocutory stage.Nevertheless, the allegations relating to advocate-client privilege raise important constitutional and statutory questions which shall be addressed during the hearing of the Petition. VI. Balance of Convenience 57.The Court is satisfied that the balance of convenience favours preservation of the status quo. 58.If the Petitioners are arrested, charged or subjected to further investigative action before the constitutional questions raised herein are determined, the Petition may be rendered nugatory. 59.Conversely, the Respondents will suffer no prejudice from maintaining the status quo pending hearing of the Petition.The Court therefore finds it appropriate to grant conservatory relief. Disposition 60.Accordingly, the Notice of Motion dated 22nd April 2026 is allowed in part, and the Court makes the following orders:a.A conservatory order is hereby issued restraining the 1st, 2nd and 3rd Respondents, whether by themselves, their officers, servants, agents or persons acting under their authority, from arresting, charging, detaining, harassing, intimidating, publishing,or otherwise interfering with the Petitioners in relation to the subject matter of this Petition pending the hearing and determination of the Petition.b.For avoidance of doubt, no criminal charges shall be instituted against either Petitioner arising from the matters complained of in this Petition pending further orders of this Court.c.The Court makes no final determination at this stage regarding whether any documents, title deeds, client files, electronic devices or other property were seized by the Respondents, that issue being reserved for determination upon hearing the Petition.d.The parties shall maintain the prevailing status quo pending hearing and determination of the Petition.e.The Respondents shall file and serve their responses to the Petition within fourteen (14) days from the date hereof with correspondong leave to the applicant to file any further affidavit.f.This matter shall be mentioned on 21st July 2026 for directions and confirmation of compliance.g.Costs of the application shall abide by the outcome of the Petition. 61.For avoidance of doubt, nothing in this ruling shall be construed as a determination that the investigations are unlawful or that the Petitioners' constitutional rights have been violated. Those issues shall be determined upon hearing the Petition on its merits. The conservatory orders granted herein are solely intended to preserve the subject matter of the Petition and safeguard the effectiveness of the Court's eventual determination.IT Is So Ordered. DATED, SIGNED AND DELIVERED AT MOMBASA IN OPEN COURT/ONLINE THROUGH MICROSOFT TEAMS THIS 4TH DAY OF JUNE 2026.HON. JUSTICE W. K. MICHENIJUDGEIn the Presence of:Mr.egunza For The Petitioners/applicants Mr Kimei For The 1st, And 2nd Respondents Mr Sirima For The 3rd RespondentCourt Assistant- Bebora