Multichoice Kenya Limited v Inspector General of Police & 8 others
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
#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
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.