https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8203

Were & another v Director of Public Prosecution & another (Criminal Petition E001 of 2026) [2026] KEHC 8203 (KLR) (12 June 2026) (Judgment) Neutral citation: [2026] KEHC 8203 (KLR) Republic of Kenya In the High Court at Siaya Criminal Petition E001 of 2026 DK Kemei, J June 12, 2026 IN THE MATTER OF: THE BILL OF RIGHTS OF THE CONSTITUTION OF KENYA 2010 AND IN THE MATTERS OF: ARTICLES 157[6], [10] & [11] OF THE CONSTITUTION OF KENYA 2010 Between Japheth Arega Were 1st Petitioner Samuel Wadugu Opowo 2nd Petitioner and Director Of Public Prosecution 1st Respondent Director Of Criminal Investigations 2nd Respondent Judgment 1.The Petitioners herein Japhet Arega Were and Samuel Wadugu Opowo filed a Petition styled Plaint dated 17th January 2026 seeking the following orders;i.A declaration that the conduct of the DPP Madiany Law Courts was unlawful, unconstitutional and an abuse of power and prosecutorial duties.ii.A declaration that a defective charge sheet cannot grant conviction and that the proceedings were vexatious, frivolous and oppressive.iii.An order prohibiting the Respondent or anyone from frustrating the Petitioners over the land whose verdict is still in court and other civil matters still pending in court.iv.General Damages against the Respondent.v.Costs and interest of the suit.vi.A cost to deter future violation of the Petitioners rights and freedoms by the Respondent.vii.Any other order the Honourable court may deem fit and just to grant in the circumstances. 2.The Petitioners particularized loss and damage as follows:a.The 1st Petitioner was arrested in 2024 and was detained for four days.b.In 2025 the 1st Petitioner was arrested and detained at Siaya Maximum prison for two weeks.c.The 1st Petitioner paid a cash bail of Kshs 10,000/ and Kshs 30,000/ respectively leaving the Petitioner financially drained.d.The Petitioners crops were destroyed at the farm, leaving his family without food.e.Psychological torture, sickness due to long stay at Siaya Gk prison.f.Defamation of character, time wasted among other issues. 3.The Petitioner’s gravamen is inter alia; that that at material times prior to the institution of this suit the Petitioners had already informed the trial Court and the Respondents that the dispute was all about land which was fraudulently transferred using a fake Court order and the fraudster had since died, his family are all out of the Country and are remotely using the state to frustrate the Petitioners; that the Respondents are aware of the use of the fake Court order to transfer the land, all these criminal cases are attempt to frustrate the Petitioners since the offence was committed by public officers; that the Respondent has been acting in bad faith, no investigation being conducted and allegations being raised in the trial court to deny the Petitioners cash bail; that the Respondent’s conduct does not promote public confidence in criminal justice system as it only undermines the proper administration of justice; that the Respondent had a duty in the rule of law to prosecute criminal cases without undue influence, direction or control by any other authority; that the Respondent needed to protect the Petitioners from violation of their fundamental rights and freedoms through unwarranted criminal prosecution especially in the previous two cases but it did not; that the Respondent had a duty to ensure that the criminal processes of the court are not abused to further defeat private interests which should be the subject of civil proceedings or improper purposes. 4.The Petitioners went ahead to plead particulars of fraud, falsehood and misrepresentation of facts as follows:a)Instituting and undertaking criminal proceedings with a defective charge sheet.b)Approving a criminal file from the investigating officer which has not been properly investigated to the required standard of the law.c)taking inaccurate investigation records before the trial court.d)Allowing false witnesses to testify in the trial court including the investigating officer who testified that the the accuracy is not mandatory in a criminal proceeding.e)Allowing contradictory and inconsistent statements in criminal proceedings.f)Failure to withdraw or discontinue the proceedings yet it knew the proceedings were bad in law until the case was dismissed.g)No single document/evidence presented by the Respondent in the trial court for the purposes of proving their case. 5.The Respondent filed grounds of opposition dated 13/2/2026 wherein it contended inter alia; that the Petition is fundamentally defective, misconceived and an abuse of the court process; that the Petitioners’ have failed to place any admissible evidence before the court to support the grave allegations of fraud, malice and abuse of office levelled against the prosecutor and the investigating officer; that the statements of the Petitioners are unsworn averments that hold no evidentiary value in law and cannot be used to determine factual disputes; that the Petition’s claims have not been properly verified by the Petitioners; that the petitioners have not demonstrated any exceptional circumstances to warrant the intervention of this court by way of a permanent injunction against ongoing proceedings; that the issues raised regarding land ownership, the validity of title deeds, and allegations of fraud are private civil disputes and fall within the jurisdiction of the Environment and Land Court, and do not constitute a valid defence to the criminal charges preferred against the Petitioners; that the Petitioners’ grievances regarding the validity of the charge sheet and the competence of witnesses are matters of evidence and fact that fall squarely within the jurisdiction of the Trial Court to determine during the trial; that the Petitioners are engaging in forum shopping by attempting to litigate the merits of their criminal defence through a constitutional petition, which is an abuse of the Court process; that the decision to charge the Petitioners was exercised independently by the Respondent under Article 157 (6) of the Constitution, based on reasonable and probable cause, and the Petitioners have tendered no sworn evidence to rebut the presumption of constitutionality of the Respondent’s actions; that the allegations that the Respondent acted in bad faith or under the direction of third parties are unverified, baseless, and malicious, and are intended to divert the course of justice; that the Petitioners have not exhausted the statutory remedies available to them under the Criminal Procedure Code, including challenging the sufficiency of evidence at the close of the prosecution’s case; that granting the orders sought would amount to his usurping the constitutional mandate of the Office of the director of Public Prosecutions and the Trial Court, thereby denying the public and the complainant’s the right to justice. 6.The Petition was canvassed by way of both written and oral submissions. 7.The Petitioners raised the following issues for determination:a)Whether the instant petition meets the threshold of constitutional petition.b)Whether the 1st Respondent has violated or infringed on the 1st Petitioner’s right that are promoted under articles of the constitution.c)Whether the petitioners have established any ground to warrant the grant of any of the orders sought in the petition.d)Who should bear the costs of the petition? 8.The Petitioners submitted inter alia; that the gravamen of the petition as being founded in the criminal case E 388/24 at Madiany Law Courts is that the administrative action by the 1st Respondent to charge and prosecute the 1st Petitioner has affected them; that the 1st Petitioner had already filled a civil suit over the property and the 1st Respondent was informed about it and was advised to check at the CTS which he failed several times but insisted on proceeding with the criminal case which was bad in law; that the 1st Petitioner had a family where he was the bread winner, he had to borrow money for cash bail which he has had to repay with interest; that the wrong criminal proceeding took months before it was forcefully withdrawn; that the recommendation to prosecute the 1st Petitioner in Criminal Case E388/2024 was an abuse of he legal process and was meant to oppress the 1st Petitioner to withdraw the civil suit which disclosed the land fraud; that the object of the charges against the 1st Petitioner was not bonafide but was meant to achieve an intention that is contrary to what the criminal justice system stands for; that the 1st Respondent has allegedly infringed and violated their rights and now want this Honourable Court intervene. 9.It was submitted that this Court has a constitutional duty to check and intervene on the conduct of the Respondent when it appear it violates the law. 10.It was contended that the 1st Respondent acted unlawfully not once but twice and was about to commit the same offence for the third time and that the 1st Respondent should bear the cost because he made the Petitioners suffer losses and damages in criminal cases which were civil in nature and that it had ill motives and acted in bad faith and failed to listen to the trial Court forcing the Petitioner to suffer losses and damages to the tune of Kshs 1.5m. That this Court has constitutional role to interpret the constitution and ensure its enjoyment by citizenry through enforcement of the fundamental rights and freedoms provided for while in interpreting the letter and spirit of the constitution by always ensuring that the interpretation is in tandem with the aspirations of the citizens. That the decision to charge and prosecute the 1st Petitioner in a criminal case E 388/24 in respect of forcible detainer which was purely a civil matter was a pure criminalization of a civil matter. That similarly, in Criminal Case E198/25 it was an abuse of court process since the prosecution witness was the same, scene of crime remained as the land in dispute. That the third criminal case in a file before the DPP had the same witness, same scene of crime the same charge. That this act by the 1st Respondent was a violation of the Petitioners fundamental rights and freedom under article 47 and 50 of the constitution of Kenya. That article 47 of the constitution provides as follows.(1.)Every person has the right to administrative action that is expeditious, lawful, reasonable and procedurally fair.(2.)If a right or fundamental freedom of a person has been or is likely to be adversely affected by administrative action, the person has the right to be given written reasons for the action.(3.)Parliament shall enact legislation to give effect to the rights in clause (1) and that legislation shall:a)Provide for the review of administrative action by a court or, if appropriate, an independent and impartial tribunal, andb)Promote efficient administrationArticle 50 (1) of the Constitution provides as follows,“every person has the right to have any dispute that can be resolved by the application of law decided in a fair and public hearing before a court or, if appropriate, another independent and impartial tribunal or body.” 11.Learned counsel for the Respondents vide oral submissions dated 14/4/2026 opposed the petition herein citing inter alia that; the matter arose from a file presented by DCI to DPP for perusal in accordance with the constitutional mandate; that the charge was forcible detainer which was proper before Court; that when the matter came up in Court, the prosecutor sought to withdraw the mater as it came to his knowledge that there was a pending civil case in the Environment and Land Court within the same Court; that the application to withdraw under Section 87 (a) Criminal Procedure Code was opposed by Counsel watching brief for complainant; that the matter was later withdrawn and that the ODPP has the constitutional mandate to commence or withdraw any matter under Article 157 of the Constitution; that the charges were properly framed without any defence contrary to the Petitioner’s assertions; that the petition be dismissed with no order as to costs as prayed. 12.The 1st Petitioner in his response submitted inter alia that; the charge was wrong as it offended the law of succession as the complainant was a son to the deceased who had no power to sue as he was not an administrator; that the investigating officer did not conduct investigations on the property concerning ownerships which had two titles; that in the investigation report the DCI sought clarification from Land Registry; that the ODPP failed to check if there was a civil matter on the CTS but insisted on proceeding with the criminal case until it was forcefully withdrawn; that the action by DPP was unlawful as it maliciously used criminal case to solve a civil dispute; that the two cases in the trial court relate to the same subject matter and that the petition should be allowed with costs as prayed. 13.I have considered the petition together with the rival submissions. I find the issue for determination is whether the petition has merit. 14.It is not disputed that the 1st Respondent had preferred certain charges against the Petitioners before Madiany Law Courts some of which are ongoing while others have been withdrawn under Section 87 (a) of Criminal Procedure Code. It is not disputed that the criminal case arose from claims over land. It is also not disputed that the claims over land are handled by the Environment and Land Court, while the criminal cases are handled by the DPP before any criminal court. It is also not in dispute that there is no bar to any criminal proceedings being pursued by the DPP against any individual, even where there are parallel civil proceedings, since the burden of proof in each case category is different. 15.Under article 157(6) of the constitution, the Director of Public Prosecution has independent powers and control over criminal cases across the country and that in the exercise of those powers, he does not require the consent from any individual or authority to commence a criminal case nor his office subject to the direction or control of any other entity. Again, under article 157(11) of the constitution, the DPP is under obligation to consider the public interest, interest of the administration of justice and the need to prevent and avoid abuse of the legal process. 16.From the foregoing provisions, it is clear that the 1st Respondent’s control over the prosecution of criminal cases should not be interfered with. The Petitioners have confirmed that indeed criminal case number E388/2024 was instituted against them and which was later withdrawn under section 87(a) of the Criminal Procedure Code after the issue of the civil case was found to exist between the parties in the same court. I find that the 1st Respondent had exercised his rights and duties under the constitution once it came to his knowledge that a civil suit was pending between the parties in the same court and in which the subject matter was similar. Indeed, the charge of forcible detainer had been preferred against the Petitioners and thus the 1st Respondent opted to withdraw the same so as to allow the land dispute to be determined. Looking at the Petitioners petition, iam satisfied that the same has not established that the 1st Respondent had acted in bad faith as the Petitioners had invaded a parcel of land belonging to the complainant and hence the forcible detainer and that upon discovery that a civil case had been instituted, he proceeded to withdraw the charge so as to allow the civil case to proceed. I find that the Petitioners have failed to place any admissible evidence before this Court to support the grave allegations of fraud, malice and abuse of office levelled against the 1st Respondent and the Investigative officers. It is also noted that the pleadings styled “statement of the 1st Petitioner” and “statement of the 2nd Petitioner” are unsworn documents that hold no evidentiary value in law and cannot be used to determine factual disputes. Again, the verifying affidavit sworn by the Petitioners is defective in substance as it merely verifies the plaint but fails to verify the specific facts and circumstances relied upon to allege violation of rights, rendering he petition hollow and unverified. It was incumbent upon the Petitioners to plead with specificity the rights violated by the 1st Respondent. 17.The fundamental rights and freedom cited by the Petitioners under article 47 and 50 of the constitution of Kenya article 47 of the Constitution are as follows.SUBPARA Article 47-(1.)Every person has the right to administrative action that is expeditious, lawful, reasonable and procedurally fair.(2.)If a right or fundamental freedom of a person has been or is likely to be adversely affected by administrative action, the person has the right to be given written reasons for the action(3.)Parliament shall enact registration to give effect to the rights in clause (1) and that legislation shall.a.Provide for the review of administrative action by a court or, if appropriate, an independent and impartial tribunal, andb.Promote efficient administrationArticle 50 (1) of the constitution provides as follows,“every person has the right to have any dispute that can be resolved by the application of law decided in a fair and public hearing before a court or, if appropriate, another independent and impartial tribunal or body.” 18.Upon a consideration of all the issues raised by the Petitioners and the response by the 1st Respondent, it is my considered view that the Petitioners have not surmounted the duty of proving breach of the alleged violation of rights against the 1st Respondent on a balance of probabilities. The Petitioners cannot begrudge the 1st Respondent for performing his duties under the constitution. In any event, any of the issues raised by the Petitioners can adequately be addressed before the trial court or the Environment and Land Court and hence the Petition herein is not the appropriate route to ventilate claims by the Petitioners. Consequently, I come to the inevitable conclusion that the Petition is bereft of any merit and that the same is hereby dismissed with no order as to costs. DATED AND DELIVERED AT SIAYA, THIS 12TH DAY OF JUNE 2026.D. KEMEIJUDGEIn the presence of:Japhet Arega Were.........................................1st PetitionerN/A Samuel Wadugu Opowo...........................2nd PetitionerSoita................................................................for 1st RespondentN/A...................................................................2nd RespondentMaurine................................................Court Assistant