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Court of AppealDismissedCivil Appeal No. E604 of 2023 (Lead File)· [2025] KECA 72 (KLR)

Multichoice Kenya Limited v Inspector General of Police & 8 others

Court of Appeal
24 January 2025
7,597 words in judgment
View original judgmentRead on Kenya Law Watch case
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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.

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
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

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 v Inspector General of Police & 8 others", 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.