https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8289

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT NAIROBI** **CONSTITUTIONAL DIVISION** **PETITION NO. E606 OF 2025** **IN THE MATTER OF: ALLEGED CONTRAVENTION OF FUNDAMENTAL RIGHTS** **AND FREEDOMS UNDER ARTICLES 1, 2(1), 3(1), 10, 19, 20, 21, 22, 23, 25, 27, 28, 29,31,** **39(1), 40, 47, 48, 49, 50, 156, 157, 159, 165, 232, 258, 259 & 260 OF THE CONSTITUTION** **OF KENYA** **AND** **IN THE MATTER OF BREACH OF THE NATIONAL VALUES AND PRINCIPLES OF** **GOVERNANCE IN REGARDS TO ARTICLE 10 OF THE CONSTITUTION** **AND** **IN THE MATTER OF: THE CONSTITUTION OF KENYA (PROTECTION OF** **RIGHTS AND FUNDAMENTAL FREEDOMS) PRACTICE AND PROCEDURE** **RULES, 2013.** **AND** **IN THE MATTER OF: ALLEGED VIOLATION OF SECTION 4 OF THE OFFICE OF** **DIRECTOR OF PUBLIC PROSECUTIONS ACT, NO. 2 OF 2013** **AND** **IN THE MATTER OF: ALLEGED VIOLATION OF SECTION 64 OF THE NATIONAL** **POLICE SERVICE ACT NO. 11A OF 2011** **AND** **IN THE MATTER OF: PARAGRAPHS 4(B) (1), 4(B) (2) AND 45 OF THE NATIONAL** **PROSECUTION POLICY** **AND** **IN THE MATTER OF: ALLEGED VIOLATION OF SECTION 4 OF THE OFFICE OF** **DIRECTOR OF PUBLIC PROSECUTIONS ACT, NO. 2 OF 2013** **AND** **IN THE MATTER OF PRINCIPLE OF LEGITIMATE EXPECTATION** **DANIEL KABUI WAMBUI.........................................................PETITIONER** **VERSUS** **ABDILATIF MAALIM HASHIM………………………...1ST RESPONDENT** **CORPORAL LEONARD OLE KANA…………..…...…2ND RESPONDENT** **OFFICER COMMANDING POLICE STATION** **(KITHYOKO POLICE STATION) ……………………3RD RESPONDENT** **OFFICE OF THE INSPECTOR GENERAL.................4TH RESPONDENT** **THE DIRECTOR, DIRECTORATE OF** **CRIMINAL INVESTIGATION…………………………5TH RESPONDENT** **THE DIRECTOR OF PUBLIC PROSECUTIONS.......6TH RESPONDENT** **THE HON. ATTORNEY GENERAL……………..…...7TH RESPONDENT** **JUDGMENT** **INTRODUCTION** 1. The Petitioner, DANIEL KABUI WAMBUI, *vide* Petition dated **21st September 2025** and supported by his affidavit sworn on the same date, challenges the legality of his arrest, detention, and the intended criminal proceedings relating to alleged financial losses at the Matuu and Kithyoko shops operated by the 1st Respondent’s companies and seeks the following reliefs - 2. **THAT conservatory orders be issued restraining the 2nd, 3rd, 4th, 5th and 6th Respondents, and their officers or anyone acting under their authority, and in particular officers from the National Police Service from arresting, charging and arraigning the Petitioner herein in Court on any charges and/or any further charges arising from this impugned case;** 3. **THAT conservatory orders be issued against the 2nd, 3rd, 4th, 5th and 6th Respondents staying the investigations and impending arraignment, plea taking and summoning of the Petitioner on 22nd September, 2025;** 4. **THAT a declaration be and is hereby issued that the 1st, 2nd, 3rd, 4th, 5th and 6th Respondents have threatened, contravened and/or violated the Petitioner’s fundamental freedoms guaranteed under Articles 1, 2(1), 3(1), 10, 19, 20, 21, 22, 27(1) and (2), 28, 29(a), 35 (2),39(1), 40, 47, 49(1) (f), 50(1) and (2) (a), 157, 159, 165, 245 and 258, of the Constitution of Kenya, 2010;** 5. **THAT the 1st, 2nd, 3rd, 4th, 5th and 6th Respondents, their servants, employees, agents, assignees, or anyone acting under their authority, and in particular officers from the National Police Service, be permanently restrained and injuncted against harassing, arresting, charging and arraigning the Petitioner in Court on criminal charges related to the case;** 6. **THAT a declaration be and is hereby made that the continued investigations on the Petitioner and or any further intended arrest of the Petitioner in relation to the matter is malicious, illegal, null and void, and must be terminated forthwith;** 7. **THAT in the alternative to (e) above, the 5th Respondent be ordered to consolidate all matters pertaining to the Petitioner herein at the Kithyoko Police Station and transfer the investigation file to the 5th Respondent’s Headquarters and a new team of investigators be appointed to take over the matter before charging the Petitioner herein;** 8. **THAT a declaration be and is hereby made that public officer who acts unreasonably, recklessly, carelessly, unprofessionally, without due regard to the Bill of Rights or the Constitutional provisions whilst executing or carrying out an official function or duty is liable to be surcharged personally for any damages there-from;** 9. **THAT appropriate sanctions/disciplinary orders be issued against the 2nd and 3rd Respondents and any officer of the National Police Service deemed to have abused his office in the handling of the dispute between the Petitioner and the 1st Respondent in connection with the case;** 10. **THAT such further orders as are appropriate for the effective administration of justice be issued;** 11. **An order to the 1st, 2nd and 3rd Respondents to refund the Kshs. 100, 000/= that was extorted from the Petitioner herein as a condition for his release;** 12. **Damages for the physical, emotional and psychological torture the Petitioner went through and still does. Also for the loss of economic opportunities due to the prolonged detention;** 13. **Any other relief that this honorable Court deems fit and proper to grant.** 14. **Costs of this Petition be provided for.** 15. The Petitioner averred that the 1st Respondent was misusing the criminal justice process, and that the true motivation behind his arrest and intended prosecution was not the pursuit of any legitimate criminal complaint but rather an attempt to intimidate, harass, and exert undue pressure upon him. He contended that this was directly connected to his having instituted Employment and Labour Relations Court **Cause No. E2421 of 2025, Daniel Kabui Wambui v Rams Communication Ltd & TSL Holdings Ltd,** wherein he challenges the lawfulness of his termination. According to the Petitioner, the criminal process was being weaponised as retaliation for his pursuit of remedies before the ELRC. 16. The Petitioner further contended that the 2nd Respondent unlawfully detained him between 26th August and 28th August 2025, without any lawful justification. He averred that his release was secured only after he was compelled to pay Kshs. 100,000, a sum which the 2nd Respondent allegedly demanded as a condition for his freedom. He maintained that this conduct amounted to extortion, noting that there is no record, acknowledgement, or official documentation evidencing receipt of the payment, thereby reinforcing the illegality of the demand. 17. He contends that the Petition was occasioned by the collusion of the 1st Respondent with the officers of the 3rd, 4th, 5th and 6th Respondents to abuse court process. 18. The Petitioner asserted that the manner in which the investigations were conducted, his subsequent arrest, processing, and eventual charging or arraignment were not undertaken in accordance with the law. He maintained that these actions violated his constitutionally guaranteed rights, contending that the Respondents acted outside the bounds of lawful authority and in a manner inconsistent with the protections afforded under the Constitution. 19. The Petitioner filed a further affidavit on 2nd March 2026 in which he reiterates earlier averments and contends that the *mala fides* in charging him is demonstrated by the fact that the charges against him were lodged after he filed the matter before the Employment and Labour Relations Court and this Petition. 20. He reasserts that the respondents have acted outside the parameters of their lawful mandate, in particular, he asserts that he was detained unlawfully and was a victim of extortion. 21. **The 1st Respondent,** Abdilatif Hashim Maalim, opposes the Petition and has sworn an affidavit on 13th October 2025. He asserts that the Petition is intended to frustrate lawful criminal proceedings commenced against the Petitioner. 22. The 1st Respondent contends that the Petition is incompetent and an abuse of the Court process, asserting that it improperly seeks to halt ongoing investigations and a prosecution duly sanctioned by the Office of the Director of Public Prosecutions. He maintains that the Petitioner’s grievances relating to his employment and dismissal fall squarely within the jurisdiction of the Employment and Labour Relations Court, and that such matters cannot operate as a bar to his prosecution where criminal culpability is alleged. 23. The 1st Respondent further asserted that, contrary to the Petitioner’s allegations, the Deed of Acknowledgement was voluntarily executed by the Petitioner. He maintains that, in addition to signing the said deed, the Petitioner on 26th August 2025 expressly admitted responsibility for the financial losses in issue and undertook to reimburse the shortfall, thereby demonstrating acknowledgment of liability independent of any alleged coercion. 24. The 1st Respondent averred that he lodged a report at Kithyoko Police Station on 26th August 2025, following which the Petitioner undertook, while at the station, to settle the outstanding amount, upon which undertaking he was released. The Respondent further stated that the Petitioner subsequently remitted Kshs. 115,000 on 28th August 2025, and that upon receipt of this payment, he withdrew the complaint to the extent that it related to the said sum. 25. As the Petitioner did not honour his word, the matter was referred to the Director of Criminal Investigation and the Office of the Director of Public Prosecutions, whereupon a decision was made to charge the Petitioner. 26. **The 2nd, 3rd, 4th, 5th and 7th Respondents** filed Grounds of opposition dated 13th October 2025. It is contended that the Petition does not meet the threshold of a constitutional Petition and that it is being ventilated in the wrong forum, as the issues raised are within the ambit of the Employment and Labour Relations Court. 27. It is submitted that the Petitioner has failed to place before the Court evidence of violation of his rights as alleged and has not laid a basis for the Court to interfere with the investigative functions of the 4th and 5th Respondent. 28. **The 6th Respondent** has filed submissions dated 18th November 2025. It is contended that the prosecution of the Petitioner was instituted with reasonable and probable cause, and there is no evidence of malice on the part of the 6th Respondent. The 6th Respondent has acted within the confines of its statutory and constitutional mandate. The trial should therefore proceed as he will be afforded an opportunity to defend himself. 29. On 24th November, 2025, this Court suspended the criminal proceedings pending the outcome of this Petition. The Petition was canvassed via written submissions. **SUMMARY OF THE PETITIONER’S SUBMISSIONS** 1. The Petitioner frames the issue for determination as- 1. Whether the Petition has merit? 2. It is submitted that the Court has jurisdiction pursuant to Article 165(3) (a) and that evidence has been adduced of a violation of his rights. Reference is made to the decision in **Ouko & 6 Others v Inspector General of Police & 11 Others (Constitutional Petition No. E005 of 2025 (2025) KEHC 12696 (KLR)** in support of his submission that his detention was illegal and he is entitled to damages. **SUMMARY OF THE SUBMISSIONS OF THE 1st RESPONDENT** 1. The issues identified for determination are 1. Whether the Petition meets the Constitutional threshold under Articles 22 and 23 as against the 1st Respondent 2. Whether any violation of the Petitioner’s constitutional rights has been proved and attributed to the 1st Respondent 3. Whether this Court should interfere with the ODPP’s independent decision to prosecute and halt the criminal process. 4. Whether, in view of the timing and pending parallel proceedings, the Petition is an abuse of this Court’s process as against the 1st Respondent. 2. He submits that the Petition fails the test laid out in **Anarita Karimi Njeru (Supra)** case and reaffirmed in **Mumo Matemu v Trusted Society of Human Rights Alliance & 5 Others [2013] eKLR** 3. In addition, the 1st Respondent relies on the decision in **Munene v Director of Public Prosecutions & 3 Others (Constitutional Petition 5 of 2022) KEHC 25900 (KLR)** and submits that the Petitioner has failed to specify the rights violated and therefore the Petition must fail. 4. It is submitted that the constitutional challenge of the prosecution is ill-advised as the issues raised can all be canvassed before the trial court and reference made to the decision in **Asha v Director of Public Prosecutions & 3 Others (Constitutional Petition 2 of 2023) KEHC 25300 (KLR).** This court should not entertain the attempt to raise a defence through a constitutional petition and reliance placed on the decision in **Olima Another v Director of Public Prosecutions; Independent Policing Oversight Authority (IPOA) & Anor (Criminal Petition E003 of 2022) KEHC 26079 (KLR)** 5. The 1st respondent asserts that there is no evidence of detention as alleged and asserts therefore that the facts in the current case ought to be distinguished from those in **Ouko & 6 Others v Inspector General of Police & 11 Others (Constitutional Petition No. E005 of 2025) (2025) KEHC 12696 (KLR)** 6. It was submitted that the Petition has been instituted for the sole purpose of forestalling an ongoing criminal prosecution, and therefore amounts to an abuse of the Court process. Counsel argued that any intervention by this Court at this stage to halt the prosecution would impermissibly interfere with the constitutional mandate of the Office of the Director of Public Prosecutions, which is empowered under Article 157 to independently direct and undertake criminal proceedings. It was further contended that the Petitioner’s employment‑related grievances cannot be invoked to shield him from prosecution where criminal allegations have been raised. **SUMMARY OF THE 2ND, 3RD, 4TH, 5TH AND 7TH RESPONDENTS’ SUBMISSIONS** 1. The following are the issues framed for determination. 1. Whether the Petition is pleaded with exactitude as established in the decision of **Anariti (sic) Karimi v Republic (1979)**? 2. Whether this Honourable Court can interfere with the investigative powers of the 2nd, 3rd, 4th, and 5th Respondent? 3. Whether this Honourable Court has the jurisdiction to determine an employment dispute? 4. Whether the reliefs sought should be granted? 2. On the 1st issue, reference is made to the Supreme Court decision in Supreme Court in **Communications Commission of Kenya & 5 others v Royal Media Services Limited & 5 Others [2014] eKLR** for the submission that the Petition must fail as the Petitioner has not pleaded with exactitude the alleged violations. 3. On the second issue, it was submitted that this Court ought to exercise restraint and refrain from interfering with the lawful execution of the Respondents’ constitutional and statutory mandate. Counsel argued that the threshold for judicial intervention in ongoing investigations or prosecutorial processes is high, and that the circumstances of this case do not meet that standard. Reference was made to the decision in **Robert Waweru Maina & 4 others v Director of Public Prosecutions & 3 others [2022] eKLR** and in **Republic V Commissioner Of Police & Another Ex-Parte Michael Monari & Another [2012] eKLR** where the Court underscored the principle that judicial oversight should not be invoked to micromanage or curtail the functions of investigative and prosecutorial agencies absent clear evidence of abuse, bad faith, or violation of constitutional rights. **SUMMARY OF THE 6TH RESPONDENT’S SUBMISSIONS** 1. The issues for determination are framed as 1. Whether the Petitioner has established a case for infringement, violation, or threat of the rights or fundamental freedoms under the Constitution of Kenya? 2. Whether the Petitioner is entitled to Orders of Prohibition? 2. It is submitted that the Respondent has a constitutional mandate and the Court should restrain itself from interfering with the 5th Respondent’s exercise of prosecutorial powers unless it is demonstrated that the actions complained of contravene Article 157(11) of the Constitution. Reference is made to the decision in **Yunus Abdul Rubi & 2 others v Director of Public Prosecution & 2 others [2016] KEHC 4146 (KLR)** and **Justus Mwenda Kathenge vs Director of Public Prosecutions and 2 Others, Petition No 372 of 2013** 3. It is submitted, therefore, that the Petitioner is not entitled to an order of Prohibition and reference made to the Court of Appeal decision in **Kenya National Examination Council v Republic; GGN & 9 others (Ex parte) [1997] KECA 58 (KLR)** and High Court **J.R Application. No. 621 OF 2017 R V Inspector General, Director of Public Prosecutions & 3 others.** 4. On the 3rd issue, it is submitted that the Petitioner has not met the legal threshold to sustain a charge of malicious prosecution, the ingredients of which were restated in **MMS v Benjamin Mutua Matolo & another [2022] eKLR** **ANALYSIS AND DETERMINATION** 1. I have carefully considered the Petition, the affidavits on record, the responses by the Respondents, and the written submissions, the following constitutional questions arise for determination: 2. Whether this Court has jurisdiction under Article 165 to entertain the Petition notwithstanding the existence of parallel proceedings before the Employment and Labour Relations Court? 3. Whether the doctrine of constitutional avoidance militates against the Court’s intervention? 4. Whether the Petition meets the threshold of a Constitutional Petition 5. What are the consequential orders arising from (a), (b) and (c) above? I now turn to each issue. ***Whether this Court has jurisdiction under Article 165 to entertain the Petition notwithstanding the existence of parallel proceedings before the Employment and Labour Relations Court.*** 1. Jurisdiction goes to the very root of the Court’s authority. The question is whether proceedings before the Employment and Labour Relations Court shut the door of this Court, or whether, in the circumstances presented, the Constitution keeps that door open. In other words, is the Petition an employment matter dressed in constitutional garb, or is it a constitutional claim that must be heard on its own footing? 2. The Respondents maintain that this dispute is, at its core, an employment matter and therefore lies within the exclusive province of the Employment and Labour Relations Court. The Petitioner counters this. He asserts that the injuries he complains of; unlawful arrest, prolonged detention, extortion, and the misuse of State authority, are not collateral to his employment dispute but constitute independent violations of constitutional rights. Those claims, he argues, fall squarely within the jurisdiction of this Court under Articles 22, 23, and 165(3)(b), which expressly empower the High Court to adjudicate alleged infringements of fundamental rights and freedoms. The question, then, is not merely where the employment dispute belongs, but whether the Constitution requires this Court to address the distinct and serious allegations of State overreach that the Petitioner has placed before it. 3. The law is well settled that the mere existence of a parallel civil or employment dispute does not divest the High Court of its authority to adjudicate claims alleging violations of fundamental rights. Jurisdiction under Article 165 is expressly engaged where a party asserts that State actors have infringed constitutional guarantees, and that mandate is not displaced simply because related issues may also arise before another specialized court. The constitutional obligation to safeguard individual rights remains distinct, and it is one this Court must discharge whenever properly invoked. 4. The Court of Appeal in **Mumo Matemu v Trusted Society of Human Rights Alliance & 5 Others [2013] eKLR** affirmed that where a litigant alleges a violation of constitutional rights, the High Court retains jurisdiction by dint of Article 165 (3) (d) and (5) of the Constitution. The Court cited with approval the decision in **Federation of Women Lawyers Kenya (FIDA-K) & 5 others v Attorney General & Another (2011) eKLR and** observed that- **[38]……This Court takes the view, therefore, that it is not the outcome of litigation that is determinative of its nature, but its substance at the time of seizure and proceedings. Viewed thus, an order setting aside the appointment of the appellant flows from a judicial finding of the unconstitutionality of the process and manner of appointment, not as a consequence of a removal procedure** 1. This Petition raises constitutional grievances arising from the conduct of State organs acting under colour of law. The Employment and Labour Relations Court, notwithstanding its specialised mandate, cannot inquire into or determine the legality of an arrest, the constitutionality of a detention, or the propriety of the exercise of police or prosecutorial authority. Those questions fall squarely within the jurisdiction of this Court. 2. I therefore find that this Court is properly seized of jurisdiction to consider and determine the constitutional issues presented. ***Whether the doctrine of constitutional avoidance militates against the Court’s intervention.*** 1. The doctrine of constitutional avoidance is no mere technicality; it is a wise principle fashioned to prevent courts from deciding constitutional questions when a matter may be resolved on some other ground. The question is whether this is one of those cases where the Court should step back, or whether the circumstances compel it to step forward 2. The Respondents submit that the Petition improperly seeks to ‘constitutionalise’ matters that can be addressed in the criminal trial or before the Employment and Labour Relations Court. They rely on the principle as enunciated by the Supreme Court in **Communications Commission of Kenya & 5 others v Royal Media Services Ltd & 5 others [2014] KESC 53 (KLR)**, where the Court held that the Court of Appeal erred in constitutionalising a non- constitutional dispute and went on to direct that a court should not determine as a constitutional issue a matter that can be properly decided on another basis. 3. The doctrine of constitutional avoidance, however, has clear exceptions and as set out by Mativo J (as he then was) in **SG v Standard Media Group & 3 others [2022] KEHC 13633 (KLR)** to include- 1. **where the constitutional violation is so clear and of direct relevance to the matter,** 2. **in the absence of an apparent alternative form of ordinary relief and** 3. **where it is found that it would be a waste of effort to seek a non-constitutional resolution of the dispute.** 4. The doctrine of constitutional avoidance does not apply where the complaint squarely concerns the violation of constitutional rights, as is the case here. A criminal trial cannot retroactively remedy an unlawful detention or an extortionate demand that occurred before arraignment. Nor is the trial court empowered to examine the constitutionality of the investigative process, except insofar as it bears on the admissibility of evidence. These questions fall within the constitutional jurisdiction of this Court. 5. The Petition alleges that the Petitioner was detained for two days without being presented before a court, and that he was compelled to pay Kshs. 100,000 to secure his release. These allegations raise prima facie constitutional concerns that cannot be deferred to another forum or left to be resolved incidentally in a criminal proceeding. 6. I therefore conclude that the doctrine of constitutional avoidance does not bar this Court from proceeding to consider the merits of the Petition ***Whether the Petition Meets the Threshold of a Constitutional Petition?*** 1. The question is; has the Petitioner set out his case with the clarity and precision required of one who invokes the Constitution? Or is the Petition so vague or wanting that it cannot properly invite the Court’s intervention? 2. It is now well settled that a party alleging a violation of constitutional rights must articulate the claim with a reasonable degree of precision. This requirement, first set out in **Anarita Karimi Njeru v Republic (1979) 1 KLR 154,** has been consistently reaffirmed by our superior courts. In **Mumo Matemu v Trusted Society of Human Rights Alliance & 5 Others [2013] eKLR,** the Court underscored that the purpose of this standard is not to impose needless technical burdens on litigants. Rather, it ensures that both the Court and the Respondents can clearly discern the nature of the alleged violation, the specific constitutional provisions implicated, and the relief sought. Precision, in this context, serves the constitutional imperative of fair notice and meaningful adjudication. 3. In assessing compliance with this threshold, the Court is guided by three core inquiries: 1. Whether the Petition identifies the specific constitutional provisions alleged to have been violated 2. Whether the Petition sets out the manner of the alleged violation 3. Whether the Petition demonstrates the nexus between the Respondents’ conduct and the alleged violation 4. Applying these principles to the present Petition, I note that the Petitioner invokes an extensive list of constitutional provisions, Articles 1, 2(1), 3(1), 10, 19, 20, 21, 22, 27(1) and (2), 28, 29(a), 35(2), 39(1), 40, 47, 49(1)(f), 50(1) and (2), 157, 159, 165, 245 and 258. At the outset, it must be said that this kitchen‑sink approach is precisely what the **Anarita Karimi Njeru** **(Supra)** and **Mumo Matemu (Supra)** line of cases and indeed the *Mutunga Rules* caution against. The Constitution requires clarity, not volume. What the Petitioner has done is to cast a wide net and leave it to the Court to discern how each cited provision relates to the facts and the alleged violations. That is not the standard of precision contemplated by our jurisprudence, nor does it facilitate meaningful engagement by the Respondents or the Court. 5. From what I can discern, the Petitioner contends that his arrest and detention were unlawful and violated his rights under Article 49 (1) (f) as he was detained for more than 24 hours before presentation to the Court. 6. He further contends that the conduct of the Police who arrested and detained him and conducted the investigations contravened the provisions of Article 10 of the Constitution, they acted at the instigation of the 1st respondent, harassed him and extorted the sum of Kshs 100,000 to secure his release from custody. He alleges that his arrest was not recorded in the occurrence book. 7. He also asserts that the Office of the Director of Public Prosecution in framing the charges against him has contravened Article 157(11) as the criminal charges and prosecution are being weaponised by the 1st respondent so as to intimidate and harass him following his filing of this Petition and the case before the Employment and Labour Relations Court. 8. Section 107 of the *Evidence Act* states: **(1) Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist.** **(2) When a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person.”** 1. In the case of **Anne Wambui Ndiritu –Vs- Joseph Kiprono Ropkoi & Another [2005] 1 EA 334**, the Court of Appeal held that: ***“As a general proposition under Section 107 (1) of the Evidence Act, Cap 80, the legal burden of proof lies upon the party who invokes the aid of the law and substantially asserts the affirmative of the issue. There is however the evidential burden that is cast upon any party the burden of proving any particular fact which he desires the court to believe in its existence which is captured in Sections 109 and 112 of the Act.”*** 1. The Petitioner’s assertion that he was detained for two days is not supported by the evidentiary record, nor is his claim that he paid Kshs. 100,000 to a police officer to secure his release. The materials before the Court tell a different story. I have reviewed the Occurrence Book extract reflecting the report made on 26th August 2025. I have also examined the requisition to compel attendance issued by Corporal Leonard Ole Kana, as well as the charge sheet capturing the relevant OB entries. Taken together, these documents depict a transparent and traceable investigative process, not the arbitrary or extortionate conduct the Petitioner alleges. The 1st Respondent, moreover, provides a plausible and coherent explanation for the payment of Kshs. 100,000, which aligns with the documentary record and is not contradicted by any credible evidence from the Petitioner. 2. The Petitioner also seeks that the 1st, 2nd, 3rd, 4th and 5th Respondents, their servants, employees, agents, assignees, or anyone acting under their authority and in particular officers from the National Police Service be permanently restrained and injuncted against harassing, arresting, charging and arraigning the Petitioner on criminal charges related to the case. 3. At the time of the hearing of the Petition, the Petitioner had been arraigned in Court and charged with the offence of Stealing by Servant contrary to Section 281 of the Penal Code. The proceedings therein were stayed pending the determination of this Petition. 4. The question that therefore arises is whether this Court may issue an order of certiorari to quash the Director of Public Prosecutions’ decision to charge the Petitioner and, by extension, halt the ongoing criminal proceedings. A related question is whether the investigative steps taken by the 2nd, 4th, and 5th Respondents may properly be subjected to judicial review. These inquiries call for a careful assessment of the constitutional boundaries within which investigative and prosecutorial bodies operate, and the circumstances under which a court may intervene when those boundaries are alleged to have been exceeded. 5. It is trite law, well established in our jurisprudence, that courts must exercise considerable restraint before intruding upon the constitutional mandates of investigative and prosecutorial agencies. These offices are designed to function independently, and judicial intervention is warranted only where it is shown that they have acted illegally, irrationally, in bad faith, or in a manner inconsistent with the public interest. Absent such a showing, the Court must respect the separation of functions that the Constitution deliberately establishes. 6. The 4th Respondent is established under Article 245 (1) of the Constitution and its powers to investigate crimes in provided for under Article 245 (4) of the Constitution which states that: **(4). The Cabinet Secretary responsible for police services may lawfully give a direction to the Inspector-General with respect to any matter of policy for the National Police Service, but no person may give a direction to the Inspector-General with respect to** **a. The investigation of any particular offence or offences;** **b. The enforcement of the law against any particular person or** **persons; or** **c. The employment, assignment, promotion, suspension, or** **dismissal of any member of the National Police Service."** 1. In **Republic v Director of Public Prosecutions & 2 Others ex parte Edwin Harold Dayan Dande & 3 Others [2018] eKLR**, the Court held as follows: **"It is also important to mention that article 245(4)(a) of the Constitution provides that: 'no person may give a direction to the Inspector General with respect to the investigation of any offence or offences.' Just like the constitutionally guaranteed independence of the DPP, this provision is aimed at ensuring that investigations are undertaken independently."** 1. In light of the foregoing constitutional and statutory provisions, this Court may intervene in the actions of the 4th Respondent only where it is shown that those actions departed from the requirements of the law or were otherwise illegal or unlawful. On the record before me, that threshold has not been met. As earlier noted, the Petitioner has not demonstrated that the 3rd, 4th, or 5th Respondents acted outside the bounds of their constitutional or statutory mandates, or that their conduct was tainted by illegality, bad faith, or procedural impropriety. In the absence of such a showing, this Court must refrain from intruding upon functions that the Constitution assigns to those offices. 2. By the same reasoning, I find no basis to conclude that the Director of Public Prosecutions’ decision to charge and prosecute the Petitioner contravenes Article 157(11) of the Constitution. The evidentiary record does not establish that the decision was influenced by improper considerations, was made in bad faith, or otherwise violated the constitutional standards governing the exercise of prosecutorial discretion. In **Dande & 3 others v Inspector General, National Police Service & 5 others [2023] KESC 40 (KLR)** the Supreme Court observed as follows **[102]We have no hesitation in holding that the record reveals that the appellants did not provide any evidence to prove that the office of the DPP did not meet the expectations required of it under article 157(11) of the Constitution, or that the action to prosecute them amounted to an abuse of the process of the court. It is also clear to us that, at the time of instituting the criminal proceedings, there was no legal bar preventing them from prosecuting the appellants. The charges the accused are facing constitute offences under the laws of Kenya and therefore, it is proper that they be subjected to the due process of the law. Their innocence is intact and there is no apparent risk that they will not face a fair trial where the duty lies on the DPP to prove their culpability.** 1. In light of the foregoing analysis, the appropriate course is to dismiss the Petition in its entirety. The evidentiary record does not establish a basis for the constitutional relief sought, nor does it justify the Court’s intervention in the investigative or prosecutorial processes at issue. It follows that the orders issued on 24th November 2025, which stayed the criminal proceedings, must now be vacated, thereby allowing **Criminal Case No. E1055/2025** to proceed in the ordinary course before the **Magistrate’s Court at Kithimani Law Courts** 2. Regarding costs, the governing authority is **Jasbir Singh Rai & 3 Others v Tarlochan Singh Rai Estate & 4 Others, SC Petition No. 4 of 2012; [2013] eKLR**, in which the Supreme Court affirmed that while costs ordinarily follow the event, courts retain discretion, exercisable for good reason, to depart from that general rule. The principle is designed to promote fairness, not rigidity, and to ensure that cost orders reflect the justice of each case. 3. In this matter, I find no basis for departing from the established rule. The Petition has not succeeded, and there are no equitable considerations that would justify withholding costs. Accordingly, the Petitioner shall bear the costs of the Petition 4. In conclusion, having considered the pleadings, the evidence presented, and the applicable constitutional and statutory framework, and for the reasons set out in the foregoing analysis, the Court issues the following final orders: 1. The Petition dated 21st September 2025is hereby dismissed in its entirety. 2. The orders issued on 24th November 2025, staying the criminal proceedings against the Petitioner in **Criminal Case No. E1055/2025 at Kithimani Law Courts** are hereby vacated. 3. Costs of the Petition shall be borne by the Petitioner. It is so ordered **SIGNED, DATED and DELIVERED VIRTUALLY at NAIROBI this 11th day of June 2026.** **P. M NYAUNDI** **JUDGE** **In the Presence of** Fardosa Court Assistant Karisa for Petitioner Oruko holding brief Ms. Kihara for 6th Respondent Rukuya for 2nd, 3rd, 5th, & 7th Respondent Wanjohi for 1st Respondent