https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9101

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT NAIROBI** **CONSTITUTIONAL AND HUMAN RIGHTS DIVISION** **CONSTITUTIONAL PETITION E396 OF 2024** **IN THE MATTER OF: ARTICLE 1, 2, 3, 10, 22, 23, 24, 25, 26, 27, 28,** **29, 32, 33, 36, 38, 39, 40, 47, 48, 49, 57, 165(3) AND 258 OF THE CONSTITUTION OF KENYA, 2010 AND RULE 4 OF THE CONSTITUTION OF KENYA (PROTECTION OF RIGHTS AND FUNDAMENTAL FREEDOMS) PRACTICE AND PROCEDURE RULES,2013)** **BETWEEN** **JIMI WANJIGI…………………..................................................................PETITIONER** **VERSUS** **INSPECTOR GENERAL OF POLICE………………………………..……………. 1ST RESPONDENT** **DIRECTOR OF PUBLIC PROSECUTIONS………………………….…………. 2ND RESPONDENT** **DIRECTOR OF CRIMINAL INVESTIGATIONS………………………………. 3RD RESPONDENT** **JUDGMENT** **INTRODUCTION** 1. Before this Court for determination is the Amended Petition dated 18th August 2024, together with the responses thereto filed by the Respondents. The Petition was instituted by the Petitioner, Mr. Jimi Wanjigi, pursuant to Articles 22, 23, 165(3) and 258 of the Constitution, alleging violation and threatened violation of his constitutional rights and fundamental freedoms arising from events said to have occurred on 8th and 9th August 2024 following the Nane-Nane demonstrations in Nairobi. 2. The Petitioner contends that officers of the National Police Service and the Directorate of Criminal Investigations unlawfully pursued him from the demonstrations, attempted to arrest him without lawful cause, unlawfully entered and searched his residence in Muthaiga, subjected his family members to intimidation and degrading treatment, seized personal property, and thereafter sought to implicate him in criminal activity through allegedly fabricated evidence. He asserts that the impugned actions were politically motivated and intended to punish him for exercising his constitutional rights to freedom of expression, political participation and peaceful assembly. 3. Contemporaneously with the filing of the Petition, the Petitioner moved the Court under certificate of urgency seeking conservatory relief. Upon hearing the parties, this Court issued, inter alia, a conservatory order on 26th September 2024 in the following terms: “Pending the full inter partes hearing and determination of the interlocutory applications pending in this file, a conservatory order in the nature of an order of prohibition be and is hereby issued against the 2nd Respondent barring the 2nd Respondent from proffering or instituting any criminal charges or continuing any criminal prosecution against the Petitioner relating to the subject matter of the Petition herein and for added clarity, the Petitioner shall not take plea before the subordinate court during his appearance of 26th September 2024, but the 2nd Respondent shall be at liberty to apply to this Court.” 1. The conservatory orders remained in force pending the hearing and determination of the Petition. 2. The Petition is opposed by all the Respondents. The 1st and 3rd Respondents, namely the Inspector-General of the National Police Service and the Director of Criminal Investigations, filed replying affidavits and written submissions denying the alleged constitutional violations and maintaining that all actions undertaken by police officers were lawful, constitutionally sanctioned, and undertaken pursuant to their statutory duty to investigate crime and maintain public order. They contend that the Petition is speculative, fails to satisfy the constitutional threshold for pleading rights violations, and constitutes an impermissible attempt to obstruct legitimate investigations. 3. The 2nd Respondent, the Director of Public Prosecutions, similarly opposes the Petition and contends that no cause of action has been disclosed against his office. It is his position that the matters complained of fall exclusively within the investigative mandate of the police; that no prosecutorial decision had been made against the Petitioner at the time of filing the Petition; and that the Petition fails to demonstrate, with the precision required in constitutional litigation, any act or omission attributable to the Office of the Director of Public Prosecutions capable of violating the Petitioner's constitutional rights. 4. Having carefully considered the pleadings, affidavits, annexures, written submissions and authorities cited by the parties, I shall first set out the respective cases before identifying the issues that arise for determination. **THE PETITIONER’S CASE** 1. The Petitioner, Mr. Jimi Wanjigi, invokes the jurisdiction of this Honourable Court under Articles 22, 23, 165(3), and 258 of the Constitution seeking declaratory and injunctive reliefs arising from what he characterizes as a sustained, coordinated, and unconstitutional campaign of intimidation, harassment, unlawful investigation, and threatened prosecution by the Respondents. The Petition is founded on events alleged to have occurred on 8th and 9th August 2024, immediately following the nationwide Nane-Nane demonstrations, which the Petitioner states he lawfully participated in pursuant to his constitutionally guaranteed rights of assembly, expression, and political participation. 2. It is the Petitioner’s case that on 8th August 2024, while in Nairobi’s Central Business District, he was trailed by armed police officers, subjected to tear gas, and pursued to his residence in Muthaiga Estate, where an attempt was allegedly made by law enforcement officers to forcibly gain entry without lawful justification, warrant, or court order. The Petitioner avers that thereafter his residence was placed under siege by heavily armed officers drawn from various security agencies acting under the direction and control of the 1st and 3rd Respondents. He contends that the officers unlawfully entered and conducted searches of his home in violation of constitutional and statutory safeguards, and that during these operations his family, including his wife and children, were subjected to intimidation, threats, violence, and inhuman and degrading treatment. 3. The Petitioner further avers that during the initial search conducted in the presence of his family members and advocates, no incriminating material was recovered. However, he contends that a subsequent search allegedly undertaken in the absence of his legal representatives and family members resulted in the purported discovery of explosive devices and related items, which he vehemently denies any knowledge of, ownership of, or connection to. He maintains that the alleged recovery was the product of fabrication and planting of evidence by law enforcement officers in order to justify an otherwise unlawful operation and to manufacture a criminal case against him. In support of this assertion, he relies inter alia on CCTV footage and surrounding circumstances which, in his view, expose inconsistencies in the Respondents’ narrative and demonstrate unlawful conduct in the handling of the scene. 4. The Petitioner further contends that the events of 8th and 9th August 2024 are not isolated, but form part of a broader and historical pattern of abuse of power and investigative misconduct by the Respondents. In particular, he relies on **Petition No. 520 of 2017**, wherein similar allegations of planting of firearms and/or incriminating evidence were raised and judicially interrogated, submitting that the present circumstances bear striking similarity to that earlier pattern and therefore reinforce the allegation of a continuing abuse of state power against him. 5. It is further his case that subsequent criminal processes arising from the same events, including charge sheets presented against his associates **in Milimani Chief Magistrates’ Court Criminal Case No. E819 of 2024,** are founded on the same contested and allegedly unlawfully obtained or fabricated evidence. He challenges the particulars contained therein, including allegations relating to possession of firearms, explosive materials, and preparation to commit a felony, contending that they are not supported by lawful investigative foundations and are instead derivative of the impugned searches and seizures. 6. The Petitioner contends that the Respondents’ actions were not undertaken in good faith or in furtherance of legitimate law enforcement objectives, but were instead motivated by ulterior political considerations arising from his participation in constitutionally protected demonstrations, his political expression, and his association with civic and public interest causes. He avers that the investigations, threats of arrest, searches, seizures, and intended prosecutions constitute an abuse of the criminal justice system, deployed as an instrument of punishment and intimidation rather than lawful enforcement of the criminal law. 7. On that basis, the Petitioner alleges violations of multiple constitutional provisions including Articles 10, 26, 27, 28, 29, 31, 32, 33, 36, 37, 38, 39, 45, 47, 48, 49, and 50 of the Constitution. He contends that the Respondents’ conduct was unlawful, arbitrary, disproportionate, procedurally unfair, irrational, and incapable of justification under Article 24 of the Constitution. In particular, he asserts that the warrantless entries into his residence violated his rights to privacy and property; that the forceful and coercive conduct of the security operations violated his and his family’s rights to dignity, security, and freedom from cruel, inhuman and degrading treatment; that the alleged targeting was discriminatory and selective in breach of Article 27 and that the actions taken against him were retaliatory in nature, aimed at punishing his political expression and participation in lawful demonstrations. 8. He further contends that the Respondents’ conduct infringed his rights to freedom of expression, assembly, association, and political participation under Articles 32, 33, 37, and 38, and that the continued investigations and threatened prosecution violate his right to fair administrative action and due process under Article 47. He additionally asserts that the manner in which the Respondents have acted undermines access to justice under Article 48 and threatens his fair trial rights under Article 50, particularly in light of the alleged reliance on unlawfully obtained or fabricated evidence. 9. In support of his Petition, the Petitioner relies on established constitutional jurisprudence, including ***Anarita Karimi Njeru v Republic, Githunguri v Republic [1985] KLR, Commissioner of Police & Director of Criminal Investigations Department v Kenya Commercial Bank Ltd & Others [2013] eKLR, Diamond Hasham Lalji & Another v Attorney General & 4 Others [2018] eKLR, Bernard Mwikya Mulinge v Director of Public Prosecutions & Others [2019] eKLR***, and ***Cyrus Shakhalanga Khwa Jirongo v Soy Developers Ltd & 9 Others [2021] KESC 32 (KLR),*** for the principle that constitutional courts are duty-bound to intervene where criminal investigations and prosecutorial powers are exercised oppressively, in bad faith, or for ulterior purposes. He further relies on ***Dancan Odhiambo Otieno & 3 Others v Inspector General of Police & 2 Others (Petition E412 of 2024)*** as illustrative of judicial concern over patterns of abuse in searches, seizures, and investigative processes. 10. The Petitioner therefore seeks the following reliefs from this court: 11. A declaration be and is hereby issued that the Respondents' action of purporting to limit the rights of the Petitioner to liberty, freedom of movement, and human dignity are unconstitutional, null and void. 12. A declaration be and is hereby issued that the 1st Respondent's action of purporting to order for or threaten the arrest of the petitioner are accordingly null, void and of no effect in law. 13. A declaration be and is hereby issued restraining the Respondents from instituting, preferring, continuing and or registering any criminal charge or continuing any intended criminal prosecution of the Petitioner. 14. A declaration be and is hereby issued restraining the Respondents from investigating or continuing with investigations against the Petitioner on the account of the events of 8th and 9th August, 2024. 15. A declaration be and is hereby issued that the 1st 2nd and 3rd Respondents have breached and continue to be in breach of the Petitioners' fundamental rights under Articles 10(1), 10(2), 26(3), 27(1), (2), (4) & (5), 28, 29, 31(a) & (b), 32(1), 33(1), 36(1), 37, 38(1), 39, 45(1), 47(1) & (2), 48, 49, 50 and 51 of the Constitution of Kenya, 2010. 16. A declaration be and is hereby issued that the 1st , 2nd and 3rd Respondents' conduct and actions which are complained of in the Petition, jointly and/or severally, singularly and/or cumulatively against the Petitioners are oppressive, unfair, unreasonable, irrational, illegal and an abuse of power and the criminal justice system and process. 17. A Declaratory Order that alleged exercise of power to arrest by the 1st Respondent's officers as alleged or at all is illegal, unconstitutional and contrary to Article 24 and 25 of the Constitution. 18. Costs of the Petition. 19. Any further relief or orders that this Honourable Court may deem just and fit to grant. **THE 1ST AND 3RD RESPONDENTS’ CASE** 1. The 1st and 3rd Respondents oppose the Petition and maintain that no constitutional rights of the Petitioner were violated. Their case is principally anchored on the Replying Affidavit sworn by CPL Lucas Juma Timothy together with the written submissions dated 24th November 2025. 2. At the outset, the Respondents contend that the Petition falls short of the constitutional threshold of precision in pleading as established in ***Anarita Karimi Njeru v Republic [1979] KLR 154*** and reaffirmed in ***Mumo Matemu v Trusted Society of Human Rights Alliance & 5 Others [2013] eKLR.*** They argue that although the Petitioner has cited a wide array of constitutional provisions, he has failed to set out with reasonable precision the specific acts complained of, the manner in which each alleged violation occurred, and the requisite nexus between the Respondents’ conduct and the alleged infringement of constitutional rights. 3. On the factual matrix, the Respondents categorically deny that the Petitioner was unlawfully targeted, harassed, or subjected to any unconstitutional treatment. They state that on 8th August 2024, officers of the National Police Service were engaged in legitimate public order management operations following nationwide demonstrations which had occasioned heightened security concerns. In the course of those operations, motor vehicle registration number KDC 883R was lawfully intercepted in the vicinity of the Petitioner’s residence, and subsequent investigative actions were undertaken on the basis of reasonable suspicion arising from ongoing criminal inquiries. 4. The Respondents maintain that the items allegedly recovered during the operation were lawfully seized, properly handled, and duly documented in a contemporaneous inventory prepared at the scene. They firmly deny the allegations that any exhibits were planted, fabricated, or otherwise unlawfully introduced by officers. They further deny that there was any unlawful entry into the Petitioner’s residence, or that the Petitioner or members of his family were subjected to threats, intimidation, violence, or degrading treatment. 5. It is their further position that all investigative steps undertaken were within the constitutional and statutory mandate of the National Police Service as provided under Articles 244 and 245 of the Constitution, Sections 24 and 35 of the National Police Service Act, and the relevant provisions of the Criminal Procedure Code. Reliance is placed on ***Republic v Commissioner of Police & Another Ex Parte Michael Monari & Another [2012] eKLR, Madatali Chatur v Cabinet Secretary, Ministry of Interior & Coordination of National Government & 3 Others [2020] eKLR,*** and ***Asif v Director of Public Prosecutions & 2 Others [2025] KEHC 5242 (KLR),*** for the proposition that investigative agencies are constitutionally mandated to investigate credible allegations of criminal conduct and are only required to demonstrate reasonable suspicion before commencing investigations or recommending charges. 6. The Respondents further contend that constitutional rights, save for those expressly non-derogable under Article 25, are subject to lawful limitation under Article 24 of the Constitution. In that regard, they submit that the Petitioner has failed to demonstrate any violation of Articles 27, 28, 31, or 37, or to establish any factual or legal basis upon which such violations can be sustained. 7. With respect to Article 47, the Respondents rely on ***Ethics and Anti-Corruption Commission & Another v Ojienda SC t/a Prof. Tom Ojienda & Associates Advocates & 2 Others [2022] KESC 59 (KLR)*** and ***Chepkoit v Ethics and Anti-Corruption Commission & Another [2024] KEHC 10389 (KLR),*** for the proposition that criminal investigations, being investigatory and preparatory in nature, do not constitute “administrative action” within the meaning of Article 47 and the Fair Administrative Action Act, and are therefore not amenable to the procedural strictures thereof. 8. Notably, and despite the grant of leave by this Honourable Court in its directions issued on 16th August 2024 permitting the Petitioner to amend his pleadings, and the subsequent filing of the Amended Petition dated 18th August 2024, the Respondents did not file any further or specific response, affidavit, or pleading traversing the averments introduced in the Amended Petition. No supplementary affidavit or amended defence was placed on record addressing the additional factual and legal allegations therein. The Respondents nevertheless contend that their existing Replying Affidavit and submissions sufficiently respond to the Petition in its entirety and ought to be read as their answer to both the original and amended pleadings. 9. In conclusion, the 1st and 3rd Respondents submit that the Petition is speculative, unsubstantiated, and amounts to an impermissible attempt to interfere with lawful investigations and the constitutional mandate of law enforcement agencies. They accordingly urge this Honourable Court to dismiss the Petition with costs. **THE 2ND RESPONDENT’S CASE** 1. The 2nd Respondent, the Director of Public Prosecutions, opposes the Petition on the basis that it discloses no constitutional or legal cause of action against the Office of the Director of Public Prosecutions. 2. The 2nd Respondent submits that the Petition is incompetent for failure to meet the well-established threshold governing constitutional litigation as articulated in ***Anarita Karimi Njeru v Republic [1979] KLR 154*** and reaffirmed in ***Mumo Matemu v Trusted Society of Human Rights Alliance & 5 Others [2013] eKLR.*** According to the 2nd Respondent, the Petitioner has failed to identify with reasonable precision any act, omission, decision or conduct attributable to the Director of Public Prosecutions that violated or threatened to violate his constitutional rights. 3. The 2nd Respondent argues that the grievances pleaded in the Petition relate exclusively to alleged investigative actions undertaken by officers of the National Police Service and the Directorate of Criminal Investigations, including surveillance, attempted arrest, searches and investigations. Those matters, it is submitted, fall within the constitutional and statutory mandate of the 1st and 3rd Respondents under Sections 24 and 35 of the National Police Service Act and have no connection with the prosecutorial functions vested in the Director of Public Prosecutions under Article 157 of the Constitution and the Office of the Director of Public Prosecutions Act. 4. It is further contended that at the time the Petition was instituted, investigations were still ongoing and no investigation file had been submitted to the Director of Public Prosecutions for consideration. Consequently, no prosecutorial decision had been made and no criminal proceedings had been instituted against the Petitioner. In those circumstances, the Petition is said to be premature and founded upon mere apprehension rather than any actual prosecutorial action. 5. The 2nd Respondent additionally contends that the Petition constitutes an improper attempt to forestall or interfere with constitutionally sanctioned investigative and prosecutorial processes. Reliance is placed on ***Hussein Khalid & 16 Others v Attorney General & 2 Others [2019] eKLR,*** where the Supreme Court underscored that criminal investigations and prosecutions should ordinarily be permitted to proceed unhindered and that trial courts possess adequate safeguards to protect constitutional rights and address any alleged procedural or substantive violations arising during criminal proceedings. 6. The Director of Public Prosecutions therefore maintains that no nexus has been established between his office and the alleged constitutional violations. In the absence of any impugned prosecutorial decision or conduct, the Petition is said to be devoid of merit, to disclose no reasonable cause of action against the 2nd Respondent, and to constitute an abuse of the Court’s process. The Court is accordingly urged to dismiss the Petition with costs as against the 2nd Respondent. **ANALYSIS AND DETERMINATION** 1. Having carefully considered the pleadings, affidavits, annexures, written submissions and authorities cited by the parties, the Court distils the following issues for determination: 2. ***Whether the Petition meets the constitutional threshold of precision in pleading violations of rights and fundamental freedoms.*** 3. ***Whether a cause of action has been disclosed against the 2nd Respondent*** 4. ***Whether the actions of the 1st and 3rd Respondents in conducting investigations, including the alleged surveillance, pursuit, entry, search, seizure, and recovery of exhibits at the Petitioner’s residence, were lawful, constitutionally and statutorily justified, or whether they amounted to violations of the Petitioner’s constitutional rights under the Bill of Rights.*** ***iii. Whether the Petitioner has established that the impugned investigations and/or alleged criminal processes were politically motivated, constituted abuse of power, or were otherwise undertaken in bad faith so as to warrant intervention by this Court.*** ***iv. Whether the Court should interfere with the Respondents’ investigative and contemplated prosecutorial process on account of alleged constitutional violations, abuse of power, and unlawfully obtained evidence.*** ***v. Whether the Petitioner has established a constitutional or legal basis for the issuance of the declaratory, prohibitory, and injunctive reliefs sought.*** ***vi. Who should bear the costs of the Petition.*** **Whether the Petition meets the constitutional threshold of precision** 1. It is a settled and enduring principle of our constitutional jurisprudence that a party alleging violation of fundamental rights and freedoms bears the obligation to plead such infringement with a degree of reasonable precision. The contours of that requirement were first articulated in ***Anarita Karimi Njeru v Republic [1979] KLR 154,*** where the Court underscored that a petitioner must set out with clarity the provisions alleged to have been violated and the manner in which they are said to have been infringed. That position has since been reaffirmed and refined in ***Mumo Matemu v Trusted Society of Human Rights Alliance & 5 Others [2013] eKLR,*** where the Court of Appeal cautioned that while constitutional litigation must not descend into generalised grievances, courts must equally avoid unduly technical approaches that defeat substantive justice. 2. What emerges from the modern constitutional dispensation is a balanced approach. pleadings must be sufficiently clear to enable a respondent to know the case it faces and to allow the Court to meaningfully interrogate the alleged violations, but they are not required to attain the rigidity of criminal particulars or the formalism of ordinary civil pleadings. The Constitution itself, through Articles 22 and 159(2)(d), enjoins courts to administer justice without undue regard to procedural technicalities, while still insisting upon clarity sufficient to anchor adjudication. 3. In the present matter, the Court has carefully examined the Amended Petition in its entirety. The Petition is not couched in vague or abstract language. It sets out, with chronological specificity, the events of 8th and 9th August 2024, identifies the actors alleged to have been involved, and delineates the nature of the impugned conduct, including pursuit from a public demonstration, alleged use of force, entry into private premises, searches conducted in different circumstances, seizure of property, and alleged fabrication or planting of evidence. These factual averments are then expressly linked to specific constitutional provisions said to have been violated, including Articles 26, 28, 29, 31, 37, 47, 48, 49 and 50 of the Constitution. 4. Importantly, the Respondents have not been left in any doubt as to the nature and scope of the claim they are called upon to meet. This is borne out by the fact that both the 1st and 3rd Respondents have filed detailed affidavits and submissions traversing the factual allegations seriatim, and advancing legal arguments on justification, mandate, and reasonableness of their actions. It cannot therefore be seriously contended that they were ambushed or unable to comprehend the case against them. 5. In constitutional litigation, the question is not whether a petition is artistically perfect or drafted with forensic elegance, but whether it sufficiently discloses an arguable infringement of rights capable of judicial determination. Having evaluated the pleadings holistically, this Court is satisfied that the Petition crosses the constitutional threshold established in ***Anarita Karimi Njeru*** and refined in ***Mumo Matemu***. The Petition discloses a clear justiciable controversy, particularises the impugned conduct with adequate specificity, and provides a coherent link between facts and alleged constitutional infractions. 6. In the circumstances, the objection predicated on alleged want of precision fails and is hereby dismissed **Whether a cause of action has been disclosed against the 2nd Respondent** 1. The 2nd Respondent contends that no prosecutorial decision had been made against the Petitioner at the time of filing the Petition and that all the grievances pleaded relate exclusively to investigative actions undertaken by the 1st and 3rd Respondents. Consequently, it is argued that no nexus has been established between the Office of the Director of Public Prosecutions and the alleged constitutional violations. 2. The Court agrees that the constitutional mandate of the Director of Public Prosecutions under Article 157 is distinct from the investigative mandate of the National Police Service and the Directorate of Criminal Investigations. Ordinarily, where no prosecutorial decision has been made, a petitioner would be required to demonstrate some specific act, omission, direction, approval, or threatened exercise of prosecutorial power attributable to the Director of Public Prosecutions. 3. However, the Court notes that the Petition does not merely challenge completed investigative actions. The Petitioner expressly seeks orders restraining the institution and continuation of criminal proceedings arising from the impugned investigations and alleges that the investigations were being undertaken for the purpose of laying a foundation for his prosecution. The conservatory orders issued by this Court on 26th September 2024 were themselves directed at preventing the institution of charges pending determination of the constitutional validity of the investigative process. 4. Under Article 157(6) of the Constitution, the decision whether or not to institute criminal proceedings ultimately rests with the Director of Public Prosecutions. Where a petitioner alleges that an intended prosecution would be founded on a process tainted by constitutional violations, the Director of Public Prosecutions is a necessary party to the proceedings notwithstanding that a final charging decision may not yet have been made. 5. The Court therefore finds that, although no completed prosecutorial action had occurred at the time of filing, sufficient nexus has been established between the reliefs sought and the constitutional mandate of the 2nd Respondent. The objection that no cause of action lies against the Director of Public Prosecutions consequently fails. **Whether the actions of the 1st and 3rd Respondents were lawful or unconstitutional** 1. The central question for determination is whether the investigative, enforcement, and search operations undertaken by the 1st and 3rd Respondents on 8th and 9th August 2024 were conducted within the confines of the Constitution and the law, or whether they constituted unjustified and impermissible violations of the Petitioner’s fundamental rights and freedoms. 2. It is not in dispute that the 1st and 3rd Respondents are constitutionally mandated under Articles 244 and 245 of the Constitution, as read together with the National Police Service Act, to investigate crime, maintain law and order, and prevent the commission of offences. That mandate, however, is not unfettered. The Supreme Court has repeatedly underscored that State power, however broad, must at all times be exercised in accordance with the Constitution, in good faith, and for the purpose for which it is conferred. In ***Cyrus Shakhalanga Khwa Jirongo v Soy Developers Ltd & 9 Others [2021] KESC 32 (KLR)*,** the Supreme Court affirmed that investigative and prosecutorial discretion must not be exercised for ulterior or improper purposes, and that courts retain jurisdiction to intervene where such power is abused or exercised in bad faith. 3. The constitutional architecture is therefore clear. Investigative authority is legitimate only insofar as it complies with constitutional safeguards, particularly those relating to the protection of fundamental rights. The Supreme Court in ***Githunguri v Republic [1985] KLR*** a decision consistently reaffirmed in our constitutional jurisprudence recognised that the Court is not a powerless spectator where State power is being used oppressively, and retains inherent jurisdiction to prevent abuse of process and ensure that the ends of justice are not defeated by unlawful executive action. 4. In the present case, the Petitioner’s version of events is detailed and internally consistent. He avers that he was trailed from a lawful public demonstration, subjected to coercive pursuit, and that his residence was thereafter surrounded, entered, and searched by security officers without prior judicial authorisation. He further contends that a second phase of the operation was undertaken in the absence of his family and legal representatives, culminating in the alleged “discovery” of incriminating items, which he challenges as having been planted. 5. These allegations directly implicate Articles 28, 29 and 31 of the Constitution. Article 31, in particular, guarantees every person the right to privacy, including the right not to have their home searched or their property seized except in accordance with the law. It is a right that lies at the core of personal liberty and dignity within a constitutional democracy. 6. Once a prima facie infringement of a protected right is alleged with specificity, the constitutional burden shifts to the State to demonstrate that the limitation or intrusion was lawful, justified, and proportionate. This is not merely a procedural expectation but a constitutional command flowing from Article 24 of the Constitution. Under that Article, any limitation of rights must be shown to be lawful, serve a legitimate aim, and satisfy the requirements of necessity and proportionality in an open and democratic society. 7. The Supreme Court and superior courts have consistently emphasised that State action affecting fundamental rights must be anchored on clear legal authority. In ***Commissioner of Police & Director of Criminal Investigations v Kenya Commercial Bank Ltd & 2 Others [2013] eKLR***, the Court of Appeal held that investigative powers must be exercised within the confines of the law and the Constitution, and may not be arbitrary or oppressive. Similarly, in ***Moses Kasaine Lenolkulal v Director of Public Prosecutions & 3 Others [2020] eKLR,*** the Court underscored that intrusion into private premises without lawful authority constitutes a serious constitutional infraction requiring strict justification. 8. In the present matter, the Respondents assert that the impugned actions were undertaken on the basis of reasonable suspicion in the course of legitimate investigations. However, reasonable suspicion, while relevant to the initiation of investigations, does not in itself dispense with the constitutional and statutory safeguards governing entry into private premises and seizure of property. It does not, without more, justify warrantless intrusion into a home protected under Article 31. 9. Crucially, no search warrant, court order, or statutory instrument authorising entry into the Petitioner’s residence has been placed before this Court. Equally, no material has been tendered to demonstrate that the circumstances fell within any recognised exception to the warrant requirement. The Court is therefore left with a situation where serious intrusion into a constitutionally protected space is asserted, but no lawful foundation for that intrusion has been established. 10. At this stage, the presumption of regularity in favour of State action captured in the maxim *omnia praesumuntur rite esse acta* is displaced once credible allegations of constitutional violation are raised. The State cannot rely on bare assertions of investigative mandate to justify conduct that prima facie infringes fundamental rights. As the courts have repeatedly held, constitutional compliance is not presumed; it must be demonstrated. 11. Further, the evidential burden squarely rests upon the Respondents to justify the limitation of rights once the Petitioner discharges the initial burden of establishing a credible violation. This is consistent with Article 24(3) of the Constitution and the broader constitutional principle that where facts lie peculiarly within the knowledge of one party particularly the State the evidential burden shifts to that party. Matters such as the existence of a warrant, operational intelligence, and the necessity of immediate entry are all facts within the exclusive knowledge of law enforcement agencies and therefore demand strict proof. 12. The Respondents have not discharged that burden. The Court is not shown any lawful basis for the entry, search, or seizure complained of, nor any justification that meets the constitutional threshold of necessity and proportionality. In the absence of such justification, the Court is compelled to conclude that the intrusion into the Petitioner’s residence was not undertaken in accordance with Article 24 of the Constitution and therefore cannot be constitutionally sustained. 13. The Court is further mindful that constitutional rights do not exist in abstraction. They are intended to protect individuals from precisely the kind of unchecked executive intrusion alleged in this matter. As the Supreme Court cautioned in ***Githunguri v Republic*** ***supra***, the Court will not hesitate to intervene where State power is being used in a manner that undermines the rule of law and the integrity of constitutional protections. 14. In the result, and having evaluated the competing positions against the applicable constitutional and jurisprudential standards, the Court finds that the actions of the 1st and 3rd Respondents, particularly the warrantless entry into the Petitioner’s residence, search, and seizure operations, were not justified in law, were undertaken in violation of Article 31 of the Constitution, and failed to meet the constitutional standards of legality, necessity, and proportionality under Article 24. They are therefore unconstitutional, unlawful, and of no legal effect. **Whether there was abuse of process or politically motivated action** 1. The Court must now determine whether the totality of the impugned conduct discloses an abuse of investigative power or the use of State authority for purposes extraneous to lawful law enforcement objectives. This inquiry is distinct from the question of legality simpliciter, it interrogates the constitutional integrity of the exercise of public power, including its purpose, good faith, and proportionality. 2. It is now well settled that although investigative and prosecutorial agencies enjoy constitutional and statutory independence, such power is not absolute. It must be exercised within constitutional limits and for the purpose for which it is conferred. In ***Diamond Hasham Lalji & Another v Attorney General & 4 Others [2018] eKLR,*** the Court held in terms that: **“The Court will interfere with and stop criminal proceedings where they are oppressive, vexatious and an abuse of the court process.”** 1. The Court further emphasised that the criminal process must not be used as a means of harassment or for collateral purposes unrelated to the administration of justice. That principle is consistent with the broader constitutional requirement that public power be exercised in good faith and not for ulterior ends. 2. Similarly, in ***Cyrus Shakhalanga Khwa Jirongo v Soy Developers Ltd & 9 Others [2021] KESC 32 (KLR)*,** the Supreme Court underscored the constitutional discipline governing exercise of public authority and stated that: ***“The exercise of prosecutorial discretion is not absolute and is subject to the Constitution. It must be exercised in good faith and for the purpose for which it is conferred.”*** 1. The Supreme Court further reaffirmed that courts retain jurisdiction to intervene where such power is used in a manner that offends constitutional values or is tainted by abuse. 2. The constitutional test emerging from these authorities is therefore clear, the Court is not concerned merely with whether the Respondents had authority to investigate, but whether that authority was exercised bona fide, for a proper purpose, and in a manner consistent with constitutional safeguards. Where circumstances disclose a reasonable inference of improper purpose, the Court is entitled indeed obliged to interrogate whether State power has been diverted from its lawful objective. 3. In the present case, the Petitioner’s account discloses a sequence of events that is not merely contemporaneous but contextually interlinked. The alleged surveillance, pursuit from a public demonstration, deployment of heavily armed officers, cordoning of a private residence, successive searches, and disputed recovery of incriminating material are said to have occurred in rapid succession following the Petitioner’s participation in constitutionally protected expressive activity. 4. When viewed objectively, this chronology raises a constitutionally cognisable question as to whether the impugned operations were driven solely by legitimate investigative necessity or whether extraneous considerations may have influenced the manner, timing, and intensity of the enforcement action. 5. The Respondents have asserted that all actions were grounded on reasonable suspicion and undertaken in the course of lawful investigations. However, constitutional justification is not satisfied by invocation of mandate alone. As was emphasised in ***Commissioner of Police & Director of Criminal Investigations v Kenya Commercial Bank Ltd & 2 Others [2013] eKLR,*** investigative authority must be exercised within the confines of the Constitution and must not be arbitrary or oppressive. 6. Where State conduct is challenged as constitutionally improper, a mere assertion of good faith is insufficient. The Respondents are required to place before the Court material demonstrating the objective basis for the impugned actions, including the investigative foundation, proportionality of the response, and compliance with constitutional safeguards. This is particularly so where the conduct complained of involves intrusion into private premises and alleged fabrication or manipulation of evidence matters which strike at the core of constitutional governance and the rule of law. 7. The Court is further guided by the well-established constitutional principle that abuse of power may be inferred from objective circumstances. Direct proof of motive is seldom available; it is therefore permissible to draw reasonable inferences from conduct, sequence of events, and absence of plausible justification, provided such inference is grounded in the evidence and not speculation. 8. In the present case, the Respondents have not placed before the Court any contemporaneous material such as an investigative brief, warrant application, intelligence report, or operational justification that would objectively explain the scale, coordination, and timing of the operations in question. In the absence of such material, the inference of proper purpose is not sustained. 9. Accordingly, the Court finds that the Petitioner has established a credible evidential foundation giving rise to a reasonable inference that the exercise of investigative power in this case was not demonstrably anchored in good faith or proportionate law enforcement necessity. The Respondents have failed to displace that inference or to demonstrate that the impugned actions were undertaken solely for legitimate investigative purposes. 10. In the circumstances, the Court is satisfied that the impugned conduct, viewed holistically, discloses an abuse of investigative power and a departure from the constitutional requirement that public authority be exercised in good faith, for proper purpose, and in strict conformity with the Bill of Rights. **Whether the Court should interfere with the Respondents’ investigative and contemplated prosecutorial process on account of alleged constitutional violations, abuse of power, and unlawfully obtained evidence** 1. It is a settled principle of constitutional adjudication that the investigative mandate of the National Police Service under Article 245 of the Constitution and the prosecutorial discretion of the Director of Public Prosecutions under Article 157 are constitutionally guaranteed functions which the courts ought not to lightly interfere with. The doctrine of separation of powers demands judicial restraint so as not to impede the efficient discharge of criminal justice functions. 2. However, that restraint is not absolute. It is equally well settled that where the exercise of investigative or prosecutorial power is shown to be inconsistent with the Constitution, undertaken in bad faith, or for an ulterior or collateral purpose, the Court not only has jurisdiction but a constitutional obligation under Articles 23, 165(3)(b) and (d), 10 and 157(11) to intervene. 3. The Supreme Court in ***Cyrus Shakhalanga Khwa Jirongo v Soy Developers Ltd & 9 Others [2021] KESC 32 (KLR)*** emphatically held that public authority must always be exercised “in good faith and for the purpose for which it is conferred,” and that where power is exercised for an improper purpose, such exercise is constitutionally invalid. Similarly, in ***Diamond Hasham Lalji & Another v Attorney General & 4 Others [2018] eKLR,*** the Court of Appeal reaffirmed that although prosecutorial discretion is wide, it must not be exercised to achieve collateral purposes, to harass or oppress citizens, or to abuse the criminal process. 4. The controlling constitutional standard is therefore one of legality, rationality, proportionality, and good faith. It is a fundamental principle of public law that a discretion exercised for an improper purpose is, in law, no exercise of discretion at all. Equally, it is a settled maxim that fraud and bad faith vitiate every judicial and administrative act founded upon them, and the Court cannot permit its process to be used as an instrument of injustice. 5. In the present case, the threatened investigations and contemplated prosecution cannot be divorced from the factual substratum laid before the Court. The Petitioner alleges that he was trailed from a lawful public demonstration, subjected to coercive security operations, and that his residence was subsequently entered and searched without warrant, culminating in the disputed recovery of incriminating material which he alleges was planted by State agents. These are not peripheral allegations, they go to the very integrity and legality of the evidential foundation upon which any contemplated prosecution would rest. 6. Where the legality of the foundational search and seizure process is itself seriously impugned on constitutional grounds, any subsequent investigative or prosecutorial action predicated upon such material becomes constitutionally suspect. The Court is not being asked to determine criminal culpability, but to interrogate whether the process through which the State proposes to anchor its case complies with constitutional safeguards governing search, seizure, and fair administrative action. 7. The Respondents, for their part, have not placed before this Court any search warrants, contemporaneous compliance documentation, or material demonstrating adherence to constitutional safeguards in the conduct of the impugned operations. Nor has any evidential basis been laid to demonstrate that the alleged recovery is independent of the contested entry into the Petitioner’s residence. In such circumstances, the Court is left with uncontroverted allegations of constitutional impropriety at the foundational stage of the investigation. 8. The Supreme Court and this Court in numerous decisions have cautioned that courts will intervene where criminal process is being used as a vehicle for oppression or where it is shown that continuation of the process would amount to an abuse of court process or a violation of constitutional rights. That is precisely the situation obtaining herein. The threatened continuation of investigations and any resultant prosecution, being premised on a process whose legality is constitutionally contested and unsupported by demonstrable compliance with constitutional safeguards, cannot be said to meet the threshold of fairness, legality, and good faith required under the Constitution. 9. Accordingly, the Court is satisfied that this is a proper case for intervention. To permit the investigations and contemplated prosecution to proceed on the basis of a process whose constitutional validity has not been demonstrated would not only offend Articles 10, 24 and 47 of the Constitution, but would also amount to legitimising a process tainted at inception. The relief sought therefore meets the constitutional threshold for protection, and the Court is entitled to grant appropriate prohibitory and declaratory reliefs to forestall further constitutional injury. 10. Although no prosecutorial decision had been made at the time of filing the Petition, the contemplated prosecution forms an integral part of the impugned process challenged before this Court. Having found that the investigative process giving rise to the intended prosecution was undertaken in violation of constitutional safeguards, the Court is satisfied that any prosecutorial action founded substantially upon that process would itself be constitutionally tainted. The inclusion of the 2nd Respondent in these proceedings is therefore justified not on account of any independent constitutional violation established against his office, but because any decision to institute charges would fall within the prosecutorial mandate conferred by Article 157 of the Constitution. **Whether the Petitioner is entitled to the reliefs sought** 1. Having found that the actions of the 1st and 3rd Respondents, as complained of, amounted to unjustified intrusion into the Petitioner’s residence without demonstrated lawful authority, and further having found that the handling of the alleged evidentiary material has not been shown to comply with constitutional safeguards, the Court is satisfied that the Petitioner has established violations of the rights protected under Articles 28, 29, 31 and 47 of the Constitution by the 1st and 3rd Respondents. 2. The effect of those violations is not merely historical. The Petitioner has demonstrated that the impugned investigative process remains active and that the threatened criminal process flows directly from the contested events of 8th and 9th August 2024. The constitutional injury complained of is therefore continuing in nature, and the Court is under a duty to provide effective and not merely theoretical protection of rights. As was emphasised by the Court of Appeal in ***Githunguri v Republic [1985] KLR***, the Court is not a passive observer in the face of abuse of process but is enjoined to intervene to prevent the State from using its coercive machinery in a manner that undermines constitutional guarantees. 3. The constitutional jurisdiction of this Court under Article 23(3) is deliberately wide, and is designed to ensure that where a violation is established or threatened, the Court is empowered to grant “appropriate relief”, including declarations, injunctions, conservatory orders and any other relief necessary to uphold and enforce the Bill of Rights. The principle underlying this remedial framework is that constitutional rights must be practical, effective and enforceable, not illusory or dependent upon the goodwill of state actors. 4. In the present case, the Respondents have not demonstrated that the warrantless entry into the Petitioner’s residence, the seizure of property, and the alleged recovery of incriminating material were conducted in accordance with constitutional and statutory safeguards. In constitutional adjudication, where a claimant establishes a prima facie violation of fundamental rights arising from state conduct, the evidential burden shifts to the State to justify the limitation under Article 24. That burden has not been discharged to the satisfaction of this Court. 5. The Court is further guided by the principle that the criminal justice process must not only be fair, but must also be seen to be fair. Where the integrity of the foundational investigative process is seriously in question, permitting continuation of a prosecution founded on such a process would amount to legitimising an alleged constitutional wrong. This Court is therefore duty-bound to intervene not to shield individuals from lawful accountability, but to ensure that accountability is pursued within the four corners of the Constitution. 6. The oft-cited dictum in ***Githunguri v Republic (supra***) remains instructive, that the Court will not permit the prosecutorial process to be used as an instrument of oppression or to achieve purposes foreign to the administration of justice. Similarly, in ***Commissioner of Police & Director of Criminal Investigations v Kenya Commercial Bank Ltd & 2 Others [2013] eKLR,*** the Court affirmed that while investigative authority is wide, it must be exercised within constitutional bounds and is subject to judicial oversight where it is shown to be arbitrary or oppressive. 7. In the circumstances of this case, the declaratory reliefs sought are warranted to vindicate the constitutional violations found by this Court. The injunctive and prohibitory reliefs are equally justified to prevent the perpetuation of a process which, on the material before the Court, has not been shown to comply with constitutional standards of legality and fairness. 8. Accordingly, the Court finds that the Petitioner is entitled to the reliefs sought in the Amended Petition. **Who should bear the costs of the Petition** 1. On the question of costs, Section 27 of the Civil Procedure Act vests discretion in this Court, the general principle being that costs shall follow the event unless the Court, for good reason, directs otherwise. In constitutional litigation, however, the award of costs is not purely mechanical but is guided by broader constitutional considerations, particularly the imperative under Articles 22 and 48 of the Constitution to promote access to justice and to avoid deterring litigants from approaching the Court for enforcement of the Bill of Rights. 2. The jurisprudence of superior courts has consistently recognised that while public interest litigation may, in appropriate cases, justify each party bearing its own costs, such an approach is not automatic and depends on the circumstances of each case, including the conduct of the parties, the nature of the litigation, and whether the proceedings were brought bona fide in the public interest or whether they were occasioned by unlawful or unconstitutional state action. 3. In the present case, the Petitioner was compelled to invoke the jurisdiction of this Court under Article 22 of the Constitution to vindicate violations of fundamental rights arising from unlawful and unconstitutional conduct on the part of State agencies. This Court has found that the impugned actions were not justified in law and resulted in the infringement of the Petitioner’s constitutional rights. In those circumstances, it would be neither just nor equitable to require the Petitioner to bear the financial burden of litigation occasioned by unconstitutional state conduct. 4. Further, there is nothing on record to suggest that the Petition was frivolous, vexatious, or an abuse of the Court process. On the contrary, the issues raised went to the core of constitutional guarantees relating to privacy, dignity, liberty, and fair administrative action. The award of costs in such circumstances not only vindicates the successful litigant but also reinforces the constitutional principle that State organs must exercise their powers within constitutional bounds. 5. Accordingly, and applying the general rule that costs follow the event, there being no sufficient reason to depart therefrom, the Court awards costs of this Petition to the Petitioner. **CONCLUSION** 1. From the totality of the evidence placed before this Court, and upon a careful evaluation of the pleadings, affidavits, submissions and authorities cited, the Court is satisfied that the Petitioner has established, on a balance of probabilities appropriate to constitutional litigation, that his fundamental rights and freedoms were violated in the manner complained of. 2. The Court has found that the Respondents’ actions, particularly the warrantless entry into the Petitioner’s residence, the manner of execution of the search operations, and the handling of the alleged evidentiary material, were not shown to have been undertaken in compliance with the Constitution or applicable statutory safeguards. In the absence of lawful justification, demonstrable procedural compliance, or sufficient rebuttal by the Respondents, such actions amount to unjustified infringement of the Petitioner’s rights under Articles 28, 29, 31 and 47 of the Constitution. 3. The Court has further found that the impugned investigative process is not insulated from constitutional scrutiny merely by virtue of being characterised as “investigations”. While this Court is alive to the constitutional and statutory mandate of the 1st and 3rd Respondents under Articles 244 and 245 of the Constitution, such mandate must at all times be exercised within the confines of the Constitution, in good faith, and in strict adherence to the rule of law. Where State action departs from these constitutional thresholds, the Court is not only entitled but duty-bound to intervene. 4. The Court is equally satisfied that the Petitioner has demonstrated a sufficient constitutional basis to warrant intervention under Article 23 of the Constitution, particularly in circumstances where the continued investigations and threatened prosecution are founded on a process whose legality has not been established and which this Court has found to be constitutionally infirm. 5. In the premises, the Court finds that the Petitioner has made out a case for the protection of his constitutional rights and is entitled to appropriate declaratory and injunctive reliefs. 6. Arising from the findings of this Court that the actions of the 1st and 3rd Respondents were unconstitutional and amounted to unjustified infringement of the Petitioner’s rights under Articles 28, 29, 31, 37 and 47 of the Constitution, and further having found that the Respondents have not discharged the burden of justifying the warrantless intrusion into the Petitioner’s residence nor demonstrated the lawfulness of the impugned investigative process, the Court is satisfied that the Petitioner has established his case to the required constitutional threshold. 7. The conservatory orders issued by this Court on 26th September 2024 were interlocutory in nature and were intended to preserve the subject matter of the Petition pending its final determination. Having now heard and determined the Petition on its merits and granted substantive relief, those conservatory orders are hereby spent and are discharged, save to the extent that the final orders contained in this Judgment supersede and replace them. 8. Accordingly, and for the reasons set out in this Judgment, the Court makes the following orders: 9. **A declaration be and is hereby issued that the actions of the 1st and 3rd Respondents purporting to limit the Petitioner's rights to liberty, freedom of movement and human dignity were unconstitutional and thus null and void;** 10. **A declaration be and is hereby issued that the actions of the 1st Respondent purporting to order or threaten the arrest of the Petitioner in relation to the subject matter are unlawful, unconstitutional and of no legal effect;** 11. **An order is hereby issued restraining the Respondents from instituting, preferring, continuing or prosecuting any criminal charge against the Petitioner arising from the events of 8th and 9th August 2024;** 12. **An order is hereby issued restraining the Respondents from continuing with investigations or taking any adverse actions against the Petitioner in respect of the said events, insofar as such investigations or further adverse actions are premised on the impugned process found by this Court to be unconstitutional;** 13. **A declaration be and is hereby issued that the 1st and 3rd Respondents violated and threatened to violate the Petitioner's rights under Articles 10(1), 10(2), 26, 27, 28, 29, 31, 32, 33, 37, 38, 39, 45, 47, 48 and 50 of the Constitution with respect to the subject matter;** 14. **A declaration be and is hereby issued that the conduct of the 1st and 3rd Respondents constituted an abuse of investigative power and an impermissible use of State authority contrary to the Constitution;** 15. **A declaratory order is hereby issued that any purported exercise of power to arrest, search, seize or prosecute the Petitioner arising from the impugned events is unconstitutional;** 16. **The Petitioner is awarded the costs, to be borne by the 1st and 3rd Respondents.** Orders accordingly. File closed accordingly. **DATED, SIGNED, AND DELIVERED VIRTUALLY THIS 10TH DAY OF JUNE 2026.** **………………………………………….** **BAHATI MWAMUYE MBS** **JUDGE**