Multichoice Kenya Limited & 4 others v Inspector General of Police & 11 others (Civil Appeal E604 & E676 of 2023 (Consolidated)) [2025] KECA 72 (KLR)
The bottom line
#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
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 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.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.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.Whether the appellants were entitled to orders of certiorari and prohibition of the decision to investigate, charge and prosecute them
Key legal issues
#Scope of judicial review under Order 53: process inquiry versus merit review
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.
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.
Whether the decision to investigate, charge and prosecute constituted an abuse of power
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.
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.
The import of section 193A of the Criminal Procedure Code and the Jirongo/Dande tension
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.
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.
Legal principles established
#- 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
#- 1.The appeal is dismissed with costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
Wrote the judgment
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
#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
Costs
The appeal was dismissed with costs; the appellants to pay the respondents' costs.
Quotable passages
#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.
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.
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.
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.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#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.