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Court of AppealDismissedCivil Appeal No. E604 of 2023 (Lead File)

Multichoice Kenya Limited & 4 others v Inspector General of Police & 11 others (Civil Appeal E604 & E676 of 2023 (Consolidated)) [2025] KECA 72 (KLR)

Court of Appeal
24 January 2025
7,597 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~30 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal ruled that criminal charges against consultants in a Multichoice-related construction dispute must proceed, as courts rarely halt prosecutions.

What this practically means

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Executive summary

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This consolidated appeal arose from the High Court of Kenya at Milimani (Ngaah, J.) dismissing a judicial review application in which Stanley Kebathi, SK Archplans, Kariuki Muchemi and Interconsult Engineers Limited, supported by Multichoice Kenya Limited, sought certiorari and prohibition of their investigation, charging and prosecution in Milimani Chief Magistrate's Court Criminal Case No. E007 of 2022. The prosecution stemmed from a complaint by Cementers Limited alleging alteration of a Structural Integrity Report to disfavour it in a construction dispute over an office block on Land Reference No. 2734/421 Oloitoktok Road, Nairobi. The dispute was also the subject of a commercial suit and arbitration between Cementers and Multichoice. The appellants argued that the criminal case was instituted for improper motives to aid Cementers in the civil and arbitral proceedings, relying on the Supreme Court's decision in Jirongo, and that the judicial review court ought to have conducted a merit-based review. The respondents, invoking section 193A of the Criminal Procedure Code and the Supreme Court's later decision in Dande, maintained that civil and criminal proceedings run concurrently and that an Order 53 application confines the court to a process inquiry. The Court of Appeal identified the sole dispositive issue as whether the appellants were entitled to certiorari and prohibition. Applying Dande, the Court held that the motion having been lodged under Order 53 rule 3 without any constitutional or rights claim, the learned Judge was right to decline a merit review; no evidence showed abuse of the investigatory or prosecutorial powers; and the civil suit and criminal proceedings could proceed concurrently, Jirongo being distinguishable. The appeal was dismissed with costs, leaving the criminal trial to proceed.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the learned Judge as a judicial review court should have assessed the evidence before it (merit-based review versus process-only inquiry)
  2. 2.Whether the learned Judge erred by considering evidence and facts in a one-sided fashion / whether the appellants were guilty of non-disclosure of material facts
  3. 3.Whether Milimani Chief Magistrate's Court Criminal Case No. E007 of 2022 was instituted with an improper motive or as an abuse of prosecutorial power
  4. 4.Whether the appellants were entitled to orders of certiorari and prohibition of the decision to investigate, charge and prosecute them

Key legal issues

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01

Scope of judicial review under Order 53: process inquiry versus merit review

Holding

Because the notice of motion was lodged under Order 53 rule 3 with no constitutional provision or rights violation pleaded, the learned Judge correctly declined to assess the evidence to determine whether a crime was committed.

Reasoning

The Court applied the Supreme Court's ruling in Dande, which distinguished between constitutional petitions (where merit review applies) and Order 53 judicial review applications (confined to process). Since the ex-parte applicants invoked no constitutional provisions or rights violations, the High Court was limited to examining the process by which the decision to investigate, charge and prosecute was reached, not its merits.

p. 12
02

Whether the decision to investigate, charge and prosecute constituted an abuse of power

Holding

The record bore no evidence that the Inspector General of Police or the DCI acted unlawfully, nor that the DPP failed to meet the expectations of Article 157(11) of the Constitution; the prosecution was not an abuse of process.

Reasoning

Following Dande, the Court held that interference with the IG and DCI is warranted only where constitutional and statutory provisions are breached or actions are illegal. Investigations followed a complaint by Cementers, the file was forwarded to the ODPP which recommended charges, and no evidence of abuse was presented. The appellants should face trial where the DPP bears the burden of proving culpability.

p. 13
03

The import of section 193A of the Criminal Procedure Code and the Jirongo/Dande tension

Holding

The civil suit and the criminal proceedings can be pursued concurrently; the Jirongo caveat applies only where a prosecution is mounted to aid a civil case or force compromise, which was not demonstrated here.

Reasoning

The Court reconciled Jirongo and Dande: Dande clarified that civil and criminal jurisdictions run parallel unless either is abused for ulterior motives. Jirongo's advice to pursue civil proceedings first applies where a prosecution is mounted to aid proof in a civil case. Here, no ulterior motive was satisfactorily demonstrated, so the criminal case could proceed alongside the civil suit and arbitration.

p. 13

Legal principles established

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  • Where a party files a judicial review suit under Order 53 of the Civil Procedure Rules without claiming any violation of rights or of the Constitution, the court is confined to a process inquiry and not a merit review of the decision.
  • Civil and criminal proceedings may run concurrently; criminal proceedings are only barred where they are employed to perpetuate ulterior motives or to abuse the process of the court.
  • A court may only interfere with the investigatory powers of the Inspector General of Police and the DCI if constitutional and statutory provisions are not adhered to, or if the actions are illegal and unlawful.

Court orders

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  1. 1.The appeal is dismissed with costs

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

majority

Wrote the judgment

majority

Wrote the judgment

On appeal from
High Court of Kenya at Milimani
JR Misc. Application No. E033 of 2022
Jurisdiction invoked
First appellate jurisdiction over the High Court's decision in a judicial review application (Order 53 of the Civil Procedure Rules); appeal lodged through Notices of Appeal dated 14th July, 5th July and 10th July 2023
Consolidated with
Civil Appeal No. E676 of 2023

Relief refused

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An order of prohibiting the continuation of proceedings in Milimani Chief Magistrate's Court Criminal Case No. E007 of 2022

No evidence demonstrated that the decision to prosecute was an abuse of process or motivated by ulterior purpose; the judicial review application was brought under Order 53 so only a process inquiry was available

p. 13

Costs

The appeal was dismissed with costs; the appellants to pay the respondents' costs.

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

The upshot is that the appeal is devoid of merit and dismissed with costs.
p. 13Disposition - dismissal of the appeal
It then follows that the learned Judge was right when he declined to assess the evidence, as he was invited to, in order to determine whether a crime was committed and, therefore, whether the Director of Public Prosecutions was right in his decision to charge and prosecute.
p. 12Scope of Order 53 judicial review
The conclusion we draw from the above provision is that both civil and criminal jurisdictions can run parallel to each other and that neither can stand in the way of the other unless either of them is being employed to perpetuate ulterior motives or generally to abuse the process of the court in whatever manner.
p. 10Section 193A CPC - concurrent civil and criminal proceedings (adopted from Dande)
To our mind, having not come across evidence demonstrating that the decision to prosecute Kebathi et al was an abuse of the process of court, we think they should have their day in court where they will confront the charges and evidence assembled against them.
p. 13Abuse of prosecutorial power

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Multichoice Kenya Limited & 4 others v Inspector General of Police & 11 others (Civil Appeal E604 & E676 of 2023 (Consolidated)) [2025] KECA 72 (KLR)", Case Analysis (2025). Civil Appeal No. E604 of 2023 (Lead File). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/72/eng@2025-01-24

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.