https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12454

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT NAIROBI** **MILIMANI LAW COURTS** **CONSTITUTIONAL AND HUMAN RIGHTS DIVISION** **PETITION NO. E229 OF 2026** **IN THE MATTER OF THE ENFORCEMENT OF THE FUNDAMENTAL RIGHTS AND PROTECTION OF FUNDAMENTAL FREEDOMS THAT HAVE BEEN CONTRAVENED UNDER ARTICLES 2, 10, 20, 21, 22, 23, 25, 27, 28, 29, 39, 48, 49, 50, 165 (3), 258, AND 259 OF THE CONSTITUTION OF KENYA, 2010** **AND** **IN THE MATTER OF THE UNREASONABLE AND UNJUSTIFIABLE LIMITATION OF THE HUMAN RIGHTS AND FUNDAMENTAL FREEDOMS OF A PERSON, CONTRARY TO THE VALUES AND THE SPIRIT, PURPOSE AND OBJECT OF THE BILL OF RIGHTS** **AND** **IN THE MATTER OF THE CONSTITUTION OF KENYA (PROTECTION OF RIGHTS AND FUNDAMENTAL FREEDOMS) PRACTICE AND PROCEDURE RULES, 2013)** **-BETWEEN-** **CHOI KI WON ……………………………..… PETITIONER/APPLICANT** **-VERSUS-** **SANA INDUSTRIES COMPANY LIMITED T/A ANGELS .…......................................................................................... 1ST RESPONDENT** **INSPECTOR GENERAL OF POLICE .......................... 2ND RESPONDENT** **DIRECTOR OF PUBLIC PROSECUTION .................. 3RD RESPONDENT** **RULING** **Introduction** 1. The Petitioner, Choi Ki Won, is a Korean national holding Passport number M379xxx28 and claims that he has been lawfully resident in Kenya under Work Permit No. 204xx9 since June 2025. 2. The 1st Respondent, Sana Industries Company Limited T/A Angels (Company No. C.41467), is a limited liability company duly incorporated under the laws of Kenya and carrying on business at, *inter alia*, Nairobi and Ruiru, among other locations. 3. The 2nd Respondent, Inspector General of Police, is the highest-ranking officer, responsible for overall command, administration and strategic leadership of the national Police Service. 4. The 3rd Respondent, Director of Public Prosecution, is a government office whose mandate as derived from ***Article 157 of the Constitution*** to institute and undertake prosecution of criminal cases. 5. The Petitioner herein Choi Ki Won, a Korean national and former manager at Sana Industries Company Limited seeks immediate release from remand, protection from police harassment and the quashing of fabricated sexual harassment charges allegedly orchestrated by his former employer, Sana Industries, following his constructive dismissal and alleged refusal to pay a USD 10,000 ransom for his confiscated passport and vital hypertension medication. In the Petition, he accuses his employer, the Inspector General of Police and the DPP of severe human rights violations, contempt of prior court orders, practices amounting to human trafficking and forced labour. **The Petition** 1. In his Petition dated 9th April 2026, the petitioner seeks the following reliefs: 2. ***THAT this Application be certified as urgent and, in light of the Applicant’s state of destitution, imminent threat to life, and continuing violation of constitutional rights, service of the same be dispensed with in the first instance.*** 3. ***THAT pending the hearing and determination of this Application and the Constitutional Petition, or until further Orders of this Honourable Court, the Honourable Court be pleased to ORDER the immediate release of the Applicant on reasonable and lenient bail terms as the Court shall deem just, having regard to the Applicant’s failing health and the circumstances of this case.*** 4. ***THAT pending the hearing and determination of this Application and Constitutional Petition, a conservatory order do issue restraining the Director of Public Prosecutions (ODPP) from instituting, continuing with, or prosecuting any criminal proceedings against the Applicant, and THAT all existing charges or proceedings be stayed forthwith.*** 5. ***THAT pending the hearing and determination of this Application and the Petition, a conservatory order do issue restraining the Inspector General of Police, the 1st Respondent, their agents and officers, from interfering with, limiting, or otherwise infringing upon the Applicant’s constitutional rights to liberty and movement as guaranteed under the Constitution.*** 6. ***THAT pending the hearing and determination of the Application and the Constitutional Petition, a conservatory order do issue restraining the 1st Respondent, the Inspector General of Police, all police officers and their agents from harassing, intimidating, threatening, or otherwise interfering with the Applicant in any manner whatsoever.*** 7. ***THAT the Honourable Court do ORDER and DIRECT the 1st Respondent, the Inspector General of Police, and all persons holding or detaining the Applicant, to physically produce the Applicant before this Honourable Court forthwith for an assessment of his health, physical condition, and well-being, and for the direct protection of his constitutional rights.*** 8. ***THAT the Honourable Court do ORDER and DIRECT the 1st Respondent and/or the Inspector General of Police, and any officers under their command, specifically the OCS Ruiru Police Station, to immediately and unconditionally release to the Applicant or to his duly instructed Advocates or to an officer of the Court for onward transmission and safe custody:*** 9. ***the Applicant’s passport; and*** 10. ***all personal effects, including but not limited to clothing, wallet, academic documents, permanent resident certificate, and all medication.*** 11. ***THAT IN THE ALTERNATIVE, the Honourable Court do order and direct the Inspector General of Police, and/or such officer having custody or oversight of the Applicant, to immediately transfer the Applicant to a suitable medical facility for urgent medical assessment and necessary treatment, with access to all prescribed medication, pending further Orders of the Court.*** 12. ***THAT this Honourable Court be pleased to make such further orders as may ensure the full protection of the Applicant’s rights to dignity, fair process, and freedom from inhuman and degrading treatment as provided under the Constitution of Kenya, 2010.*** 13. ***THAT the Inspector General of Police specifically, the OCS Ruiru Police Station and the 1st Respondent and its officers, specifically Mr. Jung Hyuk Su, and Mr. Choi Yongsuk be compelled to forthwith comply with the express Orders issued by this Honourable Court on 30th March 2026 in HCCHRPET/E202, and this Honourable Court do require them to show cause why they should not be cited for contempt of court and/or abuse of court process for any wilful disregard thereof. The orders were specific:*** 14. ***THAT pending the hearing and determination or until further orders of this Court, an order is hereby issued compelling the Respondent, its servants and/or agents, including specifically the Chief Executive Office, Mr. Jung Hyuk Su and Mr. Choi Yongsu, to forthwith and unconditionally release the Applicant’s passport (No. M37944028) TO THE Officer Commanding Station (OCS), Ruiru Police Station (OCS), Ruiru Police Station who shall hold the same in the meantime as this court may direct.*** 15. ***THAT pending the hearing and determination of this Application or until further orders of this Court, an order is hereby issued compelling the Respondent or its agents to immediately release all personal belongings, including clothing, wallet, medication, and documents, namely dtiver’s license, academic certificates and permanent residence certificate to the Officer Commanding Station, Ruiru Police Station for onward transmission to the Applicant/Petitioner.*** 16. ***In the alternative, an order is hereby issued authorizing the Officer Commanding Station, Ruiru Police Station to designate such number of officers as may be necessary to escort the Applicant/Petitioner, and in the presence of such officers or representatives as the Respondent if it so wishes assign for that purpose, to gain access into the Respondent’s accommodation facility for purposes of enabling the Applicant to collect his said personal belongings.*** 17. ***THAT this Honourable Court do DECLARE that the 1st Respondent and/or its officers and agents have violated the Applicant’s fundamental rights under Articles 27, 28, 29, and 39 of the Constitution by unlawfully withholding the Applicant’s passport and personal property, denying him terminal dues, and subjecting him to exploitative, unfair, and inhuman treatment amounting to forced labour or human trafficking.*** 18. ***THAT the Honourable Court do DECLARE that the 1st Respondent, its officers, and/or agents have subjected the Applicant to human trafficking, cruel, inhuman, and degrading treatment, and constructive dismissal, in violation of Kenyan law and international human rights obligations.*** 19. ***THAT the Honourable Court do DECLARE that the continued withholding of the Applicant’s passport, personal property, and terminal dues by the 1st Respondent, its agents or officers is illegal, unconstitutional, and in flagrant contravention of Section 24(3) of the Kenya Citizenship and Immigration Act (Cap 170).*** 20. ***THAT the Honourable Court do DECLARE that the 2nd and 3rd Respondents have breached their constitutional obligations by failing to uphold justice, ensure fairness, and adhere to established procedures necessary for the attainment of justice.*** 21. ***THAT the Honourable Court do ORDER the 3rd Respondent to quash any ongoing criminal proceedings against the Applicant, citing reasons of malicious prosecution, abuse of authority, and failure to comply with the Criminal Procedure Code (CAP 75) as well as the Constitution of Kenya (2010).*** 22. ***THAT the Honourable Court do ORDER the 1st Respondent to pay to the Applicant general damages assessed for the violation of his constitutional rights and fundamental freedoms.*** 23. ***THAT the Honourable Court do ORDER the 1st Respondent to pay the Applicant special damages in the sum of USD 40,000, or such other amount as the Court may find just and appropriate, for emotional and psychological suffering, homelessness, and distress occasioned by their unlawful conduct.*** 24. ***THAT the Honourable Court do ORDER the 1st Respondent to bear the full costs of this Application and the Petition.*** 25. ***THAT this Honourable Court do grant such further or other Orders as may be just, appropriate, and necessary in the circumstances to uphold the public interest and vindicate the Applicant’s constitutional rights.*** 26. The Petition is supported by the Petitioner’s affidavit sworn on even date. Concurrently with this Petition, the Petitioner also filed a **NOTICE OF MOTION APPLICATION** dated **9th April 2026** under Certificate of Urgency which forms the basis of this determination, seeking the following ORDERS: - ***Ex-Parte Orders that pending the hearing and determination of this Application:*** 1. ***THAT this Application be certified as urgent and, in light of the Applicant’s state of destitution, imminent threat to life, and continuing violation of constitutional rights, service of the same be dispensed with in the first instance.*** 2. ***THAT pending the hearing and determination of this Application and the Constitutional Petition, or until further Orders of this Honourable Court, the Honourable Court be pleased to ORDER the immediate release of the Applicant on reasonable and lenient bail terms as the Court shall deem just, having regard to the Applicant’s failing health and the circumstances of this case.*** 3. ***THAT pending the hearing and determination of this Application and Constitutional Petition, a conservatory order do issue restraining the Director of Public Prosecutions (ODPP) from instituting, continuing with, or prosecuting any criminal proceedings against the Applicant, and THAT all existing charges or proceedings be stayed forthwith.*** 4. ***THAT pending the hearing and determination of this Application and the Petition, a conservatory order do issue restraining the Inspector General of Police, the 1st Respondent, their agents and officers, from interfering with, limiting, or otherwise infringing upon the Applicant’s constitutional rights to liberty and movement as guaranteed under the Constitution.*** 5. ***THAT pending the hearing and determination of the Application and the Constitutional Petition, a conservatory order do issue restraining the 1st Respondent, the Inspector General of Police, all police officers and their agents from harassing, intimidating, threatening, or otherwise interfering with the Applicant in any manner whatsoever.*** 6. ***THAT the Honourable Court do ORDER and DIRECT the 1st Respondent, the Inspector General of Police, and all persons holding or detaining the Applicant, to physically produce the Applicant before this Honourable Court forthwith for an assessment of his health, physical condition, and well-being, and for the direct protection of his constitutional rights.*** 7. ***THAT the Honourable Court do ORDER and DIRECT the 1st Respondent and/or the Inspector General of Police, and any officers under their command, specifically the OCS Ruiru Police Station, to immediately and unconditionally release to the Applicant or to his duly instructed Advocates or to an officer of the Court for onward transmission and safe custody:*** 8. ***the Applicant’s passport; and*** 9. ***all personal effects, including but not limited to clothing, wallet, academic documents, permanent resident certificate, and all medication.*** 10. ***THAT IN THE ALTERNATIVE, the Honourable Court do order and direct the Inspector General of Police, and/or such officer having custody or oversight of the Applicant, to immediately transfer the Applicant to a suitable medical facility for urgent medical assessment and necessary treatment, with access to all prescribed medication, pending further Orders of the Court.*** 11. ***THAT this Honourable Court be pleased to make such further orders as may ensure the full protection of the Applicant’s rights to dignity, fair process, and freedom from inhuman and degrading treatment as provided under the Constitution of Kenya, 2010.*** ***Inter-partes Orders that pending determination and hearing of the Petition:-*** 1. ***THAT the Inspector General of Police specifically, the OCS Ruiru Police Station and the 1st Respondent and its officers, specifically Mr. Jung Hyuk Su, and Mr. Choi Yongsuk be compelled to forthwith comply with the express Orders issued by this Honourable Court on 30th March 2026 in HCCHRPET/E202, and this Honourable Court do require them to show cause why they should not be cited for contempt of court and/or abuse of court process for any wilful disregard thereof. The orders were specific:*** 2. ***THAT pending the hearing and determination or until further orders of this Court, an order is hereby issued compelling the Respondent, its servants and/or agents, including specifically the Chief Executive Office, Mr. Jung Hyuk Su and Mr. Choi Yongsu, to forthwith and unconditionally release the Applicant’s passport (No. M37944028) TO THE Officer Commanding Station (OCS), Ruiru Police Station (OCS), Ruiru Police Station who shall hold the same in the meantime as this court may direct.*** 3. ***THAT pending the hearing and determination of this Application or until further orders of this Court, an order is hereby issued compelling the Respondent or its agents to immediately release all personal belongings, including clothing, wallet, medication, and documents, namely driver’s license, academic certificates and permanent residence certificate to the Officer Commanding Station, Ruiru Police Station for onward transmission to the Applicant/Petitioner.*** 4. ***In the alternative, an order is hereby issued authorizing the Officer Commanding Station, Ruiru Police Station to designate such number of officers as may be necessary to escort the Applicant/Petitioner, and in the presence of such officers or representatives as the Respondent if it so wishes assign for that purpose, to gain access into the Respondent’s accommodation facility for purposes of enabling the Applicant to collect his said personal belongings.*** 5. ***THAT this Honourable Court do DECLARE that the 1st Respondent and/or its officers and agents have violated the Applicant’s fundamental rights under Articles 27, 28, 29, and 39 of the Constitution by unlawfully withholding the Applicant’s passport and personal property, denying him terminal dues, and subjecting him to exploitative, unfair, and inhuman treatment amounting to forced labour or human trafficking.*** 6. ***THAT the Honourable Court do DECLARE that the 1st Respondent, its officers, and/or agents have subjected the Applicant to human trafficking, cruel, inhuman, and degrading treatment, and constructive dismissal, in violation of Kenyan law and international human rights obligations.*** 7. ***THAT the Honourable Court do DECLARE that the continued withholding of the Applicant’s passport, personal property, and terminal dues by the 1st Respondent, its agents or officers is illegal, unconstitutional, and in flagrant contravention of Section 24(3) of the Kenya Citizenship and Immigration Act (Cap 170).*** 8. ***THAT the Honourable Court do DECLARE that the 2nd and 3rd Respondents have breached their constitutional obligations by failing to uphold justice, ensure fairness, and adhere to established procedures necessary for the attainment of justice.*** 9. ***THAT the Honourable Court do ORDER the 3rd Respondent to quash any ongoing criminal proceedings against the Applicant, citing reasons of malicious prosecution, abuse of authority, and failure to comply with the Criminal Procedure Code (CAP 75) as well as the Constitution of Kenya (2010).*** 10. ***THAT the Honourable Court do ORDER the 1st Respondent to pay to the Applicant general damages assessed for the violation of his constitutional rights and fundamental freedoms.*** 11. ***THAT the Honourable Court do ORDER the 1st Respondent to pay the Applicant special damages in the sum of USD 40,000, or such other amount as the Court may find just and appropriate, for emotional and psychological suffering, homelessness, and distress occasioned by their unlawful conduct.*** 12. ***THAT the Honourable Court do ORDER the 1st Respondent to bear the full costs of this Application and the Petition.*** 13. ***THAT this Honourable Court do grant such further or other Orders as may be just, appropriate, and necessary in the circumstances to uphold the public interest and vindicate the Applicant’s constitutional rights.*** 14. The Application is supported by the Petitioner’s sworn affidavit on even date and several grounds enlisted on the face of it. The petitioner asserts that he is a Korean National residing in Kenya and was employed as a manager at the 1st Respondent’s establishment under Work Permit No. 204659 since June 2025 and that upon employment, Sana Industries confiscated his passport but briefly released it in December 2025 to allow his to travel to Korea and seized it again in January 2026 upon his return to Kenya. 15. He avers that following his constructive dismissal on 18th March 2026, due to alleged oppressive working conditions, company executives unlawfully continued to confiscate his passport, wallet, academic credentials and vital medication and forcibly ejecting him from company accommodation and demanding a $10,000 ransom for the return of the confiscated items. 16. The Petitioner alleges that after he sought consular assistance from the Korean Embassy, company officials orchestrated his arrest on fabricated sexual harassment charges. 17. The Petitioner contends that court orders issued on 30th March 2026 in HCCHRPET/E202/2026 requiring the release of his passport, medical supplies and belongings to the Ruiru Police Station were ignored by both the 1st Respondent and police officers, specifically the OCS, Ruiru Police Station. 18. He asserts that during plea-taking on 2nd April 2026, the prosecution successfully opposed bail by falsely claiming he was a flight risk despite being fully aware that his passport remained unlawfully withheld leading to his remand at Thika Main & Women Prison. He complains that the Prosecution also served him charge documents in court without prior notice which amounted to trial by ambush. 19. The Petitioner avers that his health has severely deteriorated in remand without access to hypertension medication and he has been denied basic necessities since 18th March 2026. He also states that he has been forced to wear the same clothing since his eviction exposing him to extreme indignity and life-threatening health risks. 20. The Petitioner characterizes the employer’s conduct as systemic forced labour and human trafficking, stating that his case presents critical issues of public interest involving serious constitutional, statutory and international human rights violations. He asserts that the Respondents’ actions are illegal, ultra vires and directly violate ***Section 24(3) of the Kenya Citizenship and Immigration Act*** as well as the Constitution. 21. He confirms that the Court has jurisdiction to grant conservatory orders under ***Articles 23(3) and 165(3)(b) of the Constitution*** and that he has established a *prima facie* case with a strong likelihood of success, demonstrating that he will suffer severe constitutional prejudice if interim orders are denied. 22. The Petitioner also acknowledges the constitutional independence of the DPP under ***Article 157(10) of th Constitution*** but notes this power is not absolute and that accordingly, the court must intervene to prevent prosecutorial power from being abused for private vendettas or ulterior motives. 23. The Petitioner urges the Court to urgently grant interim orders to safeguard his liberty, return his passport and personal property, and prevent further irreparable harm. He pleads that granting these orders serves the interests of justice and will cause no prejudice to the Respondents. 24. In response to the Application, **the 1st Respondent** Sana Industries Company Ltd T/A Angels filed a Replying Affidavits sworn by AGNES KAGWIRIA, the Human Resource Manager **dated 2nd May 2026**. The 1st Respondent opposes the Petition and Application stating that the Petitioner, a Korean national, voluntarily resigned from his position as factory manager on 18th March 2026 after having formally commenced work under a Class D work permit in February 2026, which the company had applied and paid for on his behalf. 25. The deponent explains that the company originally came into possession of the Petitioner’s passport because he voluntarily surrendered it for work permit processing, denying any allegations that the company ever unlawfully withheld or conditioned the release of his passport, personal items, or medication. 26. Furthermore, it is asserted that the company has fully complied with prior court directions by releasing the Petitioner’s passport to the Officer Commanding Ruiru Police Station on 2nd April 2026 pursuant to orders issued in HCCHRPET E202/2026, while his remaining personal effects left at his former company residence were released to him directly. 27. The deponent addresses the criminal proceedings and clarifies that the 1st Respondent is not a party to them and did not instigate the sexual assault charges facing the Petitioner; rather, those charges arose independently from individual complaints lodged by several employees alleging physical and sexual assault. 28. Consequently, the deponent maintains that the current Application and Petition are frivolous, lacking in merit and amount to an abuse of court process. Further, that they are *sub judice* given similar claims have been raised in prior litigation in *Milimani* *HCCHRPET No. E202/2026 Choi Ki Won v Sana Industries Company Ltd*. It is urged that the court dismisses the suit with costs. 29. The 3rd Respondent the Director of Public Prosecutions filed Grounds of Opposition **dated 7th May 2026** raising 13 grounds of opposition against the Petition and Notice of Motion Application which can be summarized as follows: 30. The 3rd Respondent contends that the pleadings are misconceived and incompetent because they fail to specify how the DPP threatened or violated the Petitioner’s fundamental rights. Citing judicial precedents in ***Anarita Karimi -Versus-Republic (No.1) (1979 1 KLR 154*** and ***Mumo Matemu -Versus-Trusted Society of Human Rights Alliance, Civil Appeal No.290 of 2012(2013)***, the DPP asserts that the Petitioner has failed to meet the required legal standard by not defining with reasonable precision the alleged constitutional infringements. 31. It is argued that the Petitioner misapprehended the separate constitutional mandates of police investigations and prosecutorial duties and asserts that granting the requested orders would violate the doctrine of separation of powers by improperly interfering with the DPP’s independent prosecutorial discretion under ***Article 157(10)***. 32. The DPP avers that its mandate only crystallizes upon receipt of independent review of investigation files and finally prosecutions. It further maintains that due process was followed after receiving a formal investigation file from the Directorate of Criminal Investigations and charges were preferred strictly based on available evidence. 33. It is asserted that the Petitioner has failed to demonstrate any exceptional circumstances, malice, bad faith, or procedural impropriety that would justify judicial intervention in the prosecution. Further, that the issues raised in the Petition and Notice of Motion Application are speculative and abstract and do not disclose a real or imminent controversy capable of adjudication by this Honourable Court as against the 3rd Respondent since both the Petition and Application are a well-orchestrated attempt to scuttle and derail lawful investigative and criminal justice processes through premature constitutional litigation. 34. Additionally, the DPP notes that the suit improperly attempts to review bond terms without exhausting established criminal remedies, improperly seeks to attribute actions of third parties to the DPP and ultimately constitutes an abuse of court process and is an unjustified judicial interference that would set a dangerous precedent that undermines lawful investigation. 35. The parties took directions to canvass the Petition by oral submissions. **The Petitioner’s Submissions** 1. Ms. Muinde, counsel for the Petitioner submitted that the Petitioner is a Korean National employed by the 1st Respondent as a manager. She submits that the 1st Respondent confiscated all his documents including academic documents and money was extorted from him which he reported to the Korean Embassy. It is submitted that six (6) police officers then arrested him and alleged that he was sexually harassing junior employees of the 1st Respondent. He was charged with 3 counts of sexual harassment and one count of assault of junior employees of the 1st Respondent. 2. Counsel submitted that when they appeared on 2nd June 2026 for plea taking, the Prosecution opposed the Petitioner’s release on bond on the grounds that he was a flight risk yet his passport was confiscated by the 1st Respondent. She stated that they had obtained interim orders from the High court for release of his documents and other items and asserted that the Petitioner had no access to his documents, wallet and medication until he was released on cash bail. 3. Their submissions are that the prosecution is malicious and that the Petitioner was asked for USD 10,000 to get back his passport and when he reported to the Korean embassy is when he was arrested and charged. It is their case that the police failed to comply with orders of the Court to release his passport. 4. Counsel submits that the Petitioner was discriminated against and was coerced to submit his passport to the 1st Respondent yet other employees were not asked to do the same, which is contrary to KCIA. It is asserted that the 2nd and 3rd Respondents failed to uphold the constitution and justice; that the 1st Respondent violated the Petitioner’s rights under the Constitution and subjected him to inhumane treatment. Counsel informed the Court that the Petitioner was arrested on 18th March 2026 on the very same day that he resigned from the 1st Respondent’s employment. **The Respondents’ Submissions** 1. Mr. Njuguna for the 1st Respondent submitted that they oppose the Application dated 9th April 2026 and relied on the Replying Affidavit sworn on 2nd May 2026 by Agnes Kagwiria. Counsel submitted that the Application is defective on the face of it and that the prayers are of a substantive nature, not temporary. 2. Counsel submitted that considering the merits of the Application, it does not meet the threshold of a conservatory order. The Petition and Application allege three violations which are withholding the passport, withholding personal belongings and instigating Criminal proceedings against the Petitioner. 3. It is submitted that the Petitioner’s passport was confiscated in Ruiru Court MCCRSO NO. E021/2025 in enforcement of bail terms granted to him on 20th April 2026. That Orders issued in Pet E202/2026 were complied with and the 1st Respondent released the passport and his personal belongings to the OCS which were handed over to him. Counsel states that the Replying Affidavit does not indicate how the items were or how they found themselves in custody of the 1st Respondent. 4. On instigation of criminal proceedings, it is submitted that there is no evidence of malice or non-compliance with legal procedures. Counsel states that there are real victims assaulted by the Petitioner and he was arrested and released on the same day then he took plea before being remanded pending pre-bail report and was released on bond. That the criminal matter is due for hearing on 18th August 2026 and the Petitioner will have his day in court. 5. Counsel submitted that the 1st Respondent has no role to play in that case as it is not a complainant. There is also no evidence of any violation of rights, that the Petition is sub-judice because of a pending ***Petition E202/2026***. Counsel states that there is no *prima facie* case established to warrant issuance of conservatory orders. Accordingly, the Application should be dismissed. 6. Mr. Oruko Counsel for the 2nd and 3rd Respondent associated himself with the submissions of the 1st Respondent and stated that they oppose the Application based on their grounds of opposition dated 7th May 2026. Counsel stated that the case of ***Peter Munya vs Dickson Githinji*** is relevant and submitted that there is no real danger of prejudice, irreparable harm and public interest. He stated that confiscation of the passport was done legally by the court and that no *prima facie* case is established. 7. Counsel submitted that there are courts that can issue orders on property and that there is another forum/avenue for seeking release of the Petitioner’s property including the lower court. That as such, this Court should not interfere with the criminal process. 8. On reasonable bail terms sought, Counsel submitted that the Petitioner can raise this issue in the trial court or seek review of orders on bail terms and asserts that the said matter cannot be for this Court to determine. Counsel cited the ***Uhuru Kenyatta case*** where the court warned against reverting to the constitutional court in undeserving matters. He urged the Court to exercise restraint as the Petitioner has not sought orders from the lower court. 9. On the issue of restraint of the 3rd Respondent, Counsel stated that they are governed by law and the constitution to act in the public interest. That any compliant must be investigated and perpetrators brought to book and in this case, the DPP exercised its constitutional discretion. 10. Counsel further submitted that there is no evidence that the DPP acted unreasonably in preferring criminal charges. In ***Muxmen & another Vs AG*** Counsel submitted that the court held that courts should not interfere with exercise of prosecutorial powers unless there is evidence of abuse of process. That in this case, no abuse of process has been demonstrated citing ***DPP vs. Chamanlal Raylal Kamal & others.*** Counsel asserted that intervention is only justified where prosecution is for collateral purpose and no evidence is adduced to show malice. 11. Further, Counsel submitted that the Inspector General is mandated under ***Article 245 of the constitution*** to investigate all criminal conduct as decided in ***R vs Commissioner of Police ex-parte Michael Monar***. Counsel stated that the police received the complaint, investigated and placed the file before the 3rd Respondent who acted within constitutional spheres. Accordingly, no malice or abuse of process was demonstrated. Counsel cited ***Total (k) and 9 others vs. DPP and others [2013] eKLR,*** where the court acknowledged its inherent jurisdiction to stop criminal proceedings but warned that the power must be exercised cautiously. 12. Counsel submitted that it is in the public interest that crimes are investigated and suspects brought to justice which is what is what happened in the present case. He prayed for dismissal of the Application for conservatory orders with costs. 13. **Analysis and Determination** 14. Having considered the pleadings and the rival submissions, the main issue for my determination is ***whether the Petitioner has established a case for the granting of conservatory orders staying the criminal proceedings in Ruiru MCSO E021/2026 and quashing the charges against him.*** 15. The principles for granting conservatory orders were well laid out by the Supreme Court in **Gatirau Peter Munya vs. Dickson Mwenda Kithinji & 2 others [2014] eKLR** as follows: - ***“[86] “Conservatory orders” bear a more decided public-law connotation: for these are orders to facilitate ordered functioning within public agencies, as well as to uphold the adjudicatory authority of the Court, in the public interest. Conservatory orders, therefore, are not, unlike interlocutory injunctions, linked to such private-party issues as “the prospects of irreparable harm” occurring during the pendency of a case; or “high probability of success” in the supplicant’s case for orders of stay. Conservatory orders, consequently, should be granted on the inherent merit of a case, bearing in mind the public interest, the constitutional values, and the proportionate magnitudes, and priority levels attributable to the relevant causes.*** ***[87] The issue before us, therefore, is whether this is a proper case where the interlocutory reliefs sought by the applicant should be granted. The principles to be considered before a Court of law may grant stay of execution have been crystallized through a long line of judicial authorities at the High Court and Court of Appeal. Before a Court grants an order for stay of execution, the appellant, or intending appellant, must satisfy the Court that:*** ***(i) the appeal or intended appeal is arguable and not frivolous; and that*** ***(ii) unless the order of stay sought is granted, the appeal or intended appeal, were it to eventually succeed, would be rendered nugatory.*** ***[88] These principles continue to hold sway not only at the lower Courts, but in this Court as well. However, in the context of the Constitution of Kenya, 2010, a third condition may be added, namely:*** ***(iii) that it is in the public interest that the order of stay be granted.*** ***[89] This third condition is dictated by the expanded scope of the Bill of Rights, and the public spiritedness that run through the Constitution.”*** 1. The above principles were summarized in **Wilson Kaberia Nkunja vs. The Magistrate and Judges Vetting Board and Others Nairobi High Court Constitutional Petition No.154 of 2016 (2016) eKLR** as follows: - ***“ (a) An applicant must demonstrate that he has a prima facie case with a likelihood of success and that unless the court grants the conservatory order, there is a real danger that he will suffer prejudice as a result of the violation or threatened violation of the Constitution.*** ***(b) Whether, if a conservatory order is not granted, the Petition alleging violation of, or threat of violation of rights will be rendered nugatory; and*** ***(c) The public interest must be considered before grant of a conservatory order.”*** 1. On the first parameter, the court in **David Ndii & others vs. Attorney General & others [2021] eKLR**, the Court expressed itself on what a *prima facie* case entails on this as follows: - ***“45. The first issue for determination in matters of this nature, is whether a prima facie case has been established and a prima facie case, it has been held, is not a case which must succeed at the hearing of the main case. However, it is not a case which is frivolous. In other words, it has to be shown that a case which discloses arguable issues has been raised and, in this case, arguable constitutional issues.” (emphasis added)*** 1. I have considered the Petitioner’s case as a whole to determine whether he raises a *prima facie* case. The Plaintiff is complaining that after his constructive dismissal, his former employer the 1st Respondent herein illegally seized his passport and medical supplies to extort from him USD10,000. That when he did not comply, the 1st Respondent orchestrated his arrest on fake charges and conspired with police to ignore a court order for the return of his property. He further alleges that the prosecution maliciously blocked his bail by falsely claiming he was a flight risk, resulting in his unconstitutional detention at Thika Prison, where he is suffering severe medical neglect without his vital hypertension medication. He pleads several constitutional violations as a result. 2. From these facts of this case and drawing from the definition of what a *prima facie* case entails, I find that the Petitioner/Applicant’s claims are not frivolous or baseless and that the issues raised are triable constitutional violations that can be well addressed and determined at the main hearing of the suit. Accordingly, the first test passes. 3. The second parameter is whether the failure by this Court to issue conservatory orders would render the pending Petition nugatory. To determine whether a suit will become otiose or nugatory if interim conservatory orders are not granted, one has to consider whether the orders sought affect the substratum of the Petition. 4. I have therefore considered the prayers in this Application and how they relate to the Petitioner’s case in the main suit. The Petitioner seeks several orders which are summarized as follows: - his immediate release on bail; conservatory orders to stay criminal proceedings and restrain police action; protection from harassment by the police; his immediate physical production in Court to assess his health and protect his rights or alternative medical transfer; release of his passport & belongings and general protective orders. 5. From the prayers in the main Petition, the Petitioner is seeking immediate bail and release, medical attention, protection from police harassment, the return of his seized passport and belongings or contempt proceedings for non-compliance, a stay and ultimate dismissal of all criminal charges, declarations that his rights were violated through forced labour and human trafficking and USD 40,000 compensation together with general damages from the Respondents. 6. Under **Article 23 (3) and 165 (3) (b) of the Constitution**, this Court is empowered to grant interim conservatory orders to preserve the subject matter of the Petition and maintain the *status quo* until the main Petition is heard and determined. The Articles provide as follows: ***23. Authority of courts to uphold and enforce the Bill of Rights*** ***(3) In any proceedings brought under Article 22, a court may grant appropriate relief, including—*** ***(c) a conservatory order;*** ***165. High Court*** ***(3) Subject to clause (5), the High Court shall have—*** ***(b) jurisdiction to determine the question whether a right or fundamental freedom in the Bill of Rights has been denied, violated, infringed or threatened.*** 1. The second test of the main suit being nugatory if interim conservatory reliefs are not granted hinges on whether, in the absence of such orders, the Petitioner will suffer irreparable harm or prejudice of a constitutional nature that cannot be remedied by damages alone and if such failure will hinder the Court from granting effective constitutional remedies when it eventually hears and determines the suit. 2. From the Petitioner’s prayers in this Application, other than demanding his property back, he seeks to bar the Respondents from proceeding with the criminal proceedings in the trial court and from being harassed by the police. It is trite that the 2nd and 3rd Respondents are constitutional offices which enjoy independence from interference by any person or office, including the courts, unless it is established that any actions undertaken under the guise of prosecutorial and police independence are malicious, against public interest and contrary to the Constitution and statute. (see **Kuria & 3 others v Attorney General [2002] 2 KLR 69.)** 3. In particular, **Article 157** establishes the office of the 3rd Respondent and further sets out its independence as follows: - ***157. Director of Public Prosecutions*** ***(1) There is established the office of Director of Public Prosecutions.*** ***(2) .....*** ***(6) The Director of Public Prosecutions shall exercise State powers of prosecution and may—*** 1. ***institute and undertake criminal proceedings against any person before any court (other than a court martial) in respect of any offence alleged to have been committed;*** 2. ***take over and continue any criminal proceedings commenced in any court (other than a court martial) that have been instituted or undertaken by another person or authority, with the permission of the person or authority; and*** 3. ***subject to clause (7) and (8), discontinue at any stage before judgment is delivered any criminal proceedings instituted by the Director of Public Prosecutions or taken over by the Director of Public Prosecutions under paragraph (b).*** ***(7) .....*** ***(8) ......*** ***(9) ......*** ***(10) The Director of Public Prosecutions shall not require the consent of any person or authority for the commencement of criminal proceedings and in the exercise of his or her powers or functions, shall not be under the direction or control of any person or authority.*** ***(11) In exercising the powers conferred by this Article, the Director of Public Prosecutions shall have regard to the public interest, the interests of the administration of justice and the need to prevent and avoid abuse of the legal process....*** 1. The same principles apply to the office of the 2nd Respondent under **Article 245** which states: **245. Command of the National Police Service** 1. ***There is established the office of the Inspector-General of the National Police Service.*** 2. ***The Inspector-General—*** 3. ***is appointed by the President with the approval of Parliament; and*** 4. ***shall exercise independent command over the National Police Service, and perform any other functions prescribed by national legislation.*** 5. ***The Kenya Police Service and the Administration Police Service shall each be headed by a Deputy Inspector-General appointed by the President in accordance with the recommendation of the National Police Service Commission.*** 6. ***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—*** 7. ***the investigation of any particular offence or offences;*** 8. ***the enforcement of the law against any particular person or persons; or*** 9. ***the employment, assignment, promotion, suspension or dismissal of any member of the National Police Service.*** 10. As already established, the Director of Public Prosecutions the 3rd Respondent herein has independent constitutional authority to institute criminal proceedings upon receiving the outcome of investigations from the 2nd Respondent. To halt a criminal trial at an interim stage where allegations of sexual harassment are actively being adjudicated not only undermines the public interest and compromises the rights of the alleged victim but also stifles the independence of the 2nd and 3rd Respondents. 11. On the same breath, I hold that if this Court ultimately determines after a full hearing of the Petition that the actions of the 1st Respondent violated the Petitioner’s rights and the subsequent prosecution was indeed malicious or an abuse of process, it has the full power to quash the proceedings and award substantial damages. The ongoing criminal trial does not in my view destroy or interfere with the subject matter of the Petition. 12. Secondly, the Petitioner seeks interim orders alleging infringement of fair trial rights of an accused person which to me are substantive orders that can only be heard and determined at the main suit, not at this interim stage. It is also not in question that the trial court itself is bound by **Article 50** to guarantee a fair hearing and the Petitioner can raise his defense of malicious prosecution or being framed with tramped up charges before the trial magistrate for consideration. 13. Thirdly, on the issue of bail, this Court notes that the Petitioner is currently remanded under a lawful order of a competent Magistrate’s court pending a probation officer’s report. The correct procedural mechanism to challenge denial of bail or seek favourable bail terms is through a formal bail review or appeal within the criminal justice framework. It is my determination that the Petitioner’s right to seek bail review in the magistrate’s court remains active and intact and he does not to seek that before this Court on an interim basis. 14. I have also considered the Petitioner’s prayer for his immediate physical production in Court to assess his health or to obtain as an alternative, medical transfer. While this Court holds with sanctity the right to healthcare and further appreciates the Petitioner’s alleged health status, I note that emergency medical transfers to public health facilities are handled routinely within the correctional remand authorities and if this is denied, the Petitioner can again request for the same from the trial court which can order prison authorities to provide medical access as opposed to seeking an actual order from this Court to facilitate the same or stay the criminal proceedings to enable him regain his health. 15. Ultimately, it is my determination that all these interim prayers can be well addressed by the trial court including his request for return of his property pending trial, and even if not granted by this Court will not affect the substratum of the Petition. 16. My reasons for the above findings and conclusions are pegged on the fact that a critical principle of interim conservatory orders is that courts should refrain from granting interim orders that effectively determine the main Petition. I further find that in this case, the Petitioner’s core remedies and case will remain intact and not be rendered nugatory if these orders are not granted. Accordingly, the second test fails. 17. On the third test of public interest, I have already established that the discharge of the functions of the 2nd and 3rd Respondents can only be interfered with if it is demonstrated that they clearly acted *ultra vires* or against public policy. In this case, the Petitioner has been accused of serious criminal charges which cannot be overlooked or wished away. He has also failed to demonstrate at this interim stage the manner in which the Respondents have acted contrary to the law in proffering the charges against him. Whatever issues he is raising although not yet heard conclusively at this interim stage, can only be decided upon at the appropriate forum; in this case, the criminal trial court which provides a lawful forum to test the validity of the criminal charges. 18. It would be against public interest to interfere with the course of the criminal justice system by stopping the prosecution at this interim stage before allowing the Petition to be heard fully and determined, especially because the 2nd and 3rd Respondents are expected to discharge their functions without interference or the apprehension that their decision to investigate and prosecute will be muzzled or cut short by a constitutional court. 19. In view of the foregoing, I find that the Petitioner/Applicant has not made out a case for the granting of conservatory orders. In the premises, the Application is dismissed with no orders as to costs. 20. Pretrial directions shall be given on 8th October, 2026. 21. Orders accordingly. **Dated, Signed and Delivered virtually at Nairobi this 3rd Day of August, 2026** **R.E. ABURILI** **JUDGE**