Kariuki v Director of Public Prosecutions & 3 others (Civil Appeal E331 of 2024) [2026] KECA 203 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed that winning an eviction case does not stop criminal charges over the same property, dismissing the appeal against a landlord's prosecution.
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 trial Judge exercised his discretion judiciously in dismissing the appellant's judicial review application
- 2.The import and legal effect of the orders of eviction granted by the ELC on the decision to prosecute the appellant, and whether the prosecution was therefore illegal, irrational or malicious
Key legal issues
#Whether a court-sanctioned eviction order establishing the applicant as proprietor bars a criminal prosecution over the same property as malicious prosecution
No. The ELC ruling granted eviction orders on procedural compliance with sections 152A-152G and made no finding on title; multiple contested titles and ongoing investigations provided a factual basis for the charges, distinguishing Silas Jirongo.
The Court examined the ELC ruling and found the eviction application was decided purely on compliance with the statutory eviction procedure; title was contested, multiple titles existed, and investigations by the DCI and National Land Commission were noted in the ruling itself. Unlike Silas Jirongo, where there was a single title and prosecution aimed at forcing compromise, here the prosecution rested on investigations predating the civil proceedings. The appellant also retains the opportunity to raise his defence in the criminal trial.
Whether the existence of a civil suit bars criminal proceedings
No. Section 193A of the Criminal Procedure Code and precedent establish that civil and criminal jurisdictions can run in parallel.
Relying on section 193A of the Criminal Procedure Code and the Supreme Court decisions in Silas Jirongo and Dande, the Court reaffirmed that a prosecution is only stayed where it is employed for ulterior motives or abuse of process. The fact that a good defence may exist, or that the prosecution may fail, is not a ground for halting bona fide criminal proceedings.
The standard for interfering with a discretionary decision of the High Court on appeal
The Court of Appeal interferes only where the judge misdirected himself in law, misapprehended the facts, took into account or failed to take into account relevant considerations, or the decision is plainly wrong.
Applying United India Insurance v East African Underwriters, the Court reiterated that it will not substitute its own weight of factors for that of the judge below. It also affirmed its first appellate duty per Selle v Associated Motor Boat Co. to re-evaluate the evidence, but found the trial Judge's conclusions correct.
The constitutional framework for police investigations and prosecutorial independence
The Inspector-General and DCI have the constitutional mandate to investigate, and the DPP's independence under Article 157(10) is protected; courts may interfere only where constitutional and statutory provisions are not adhered to or actions are illegal and unlawful.
The Court traced the institutional framework under Articles 243, 245 and 157 and the National Police Service Act, including Article 157(11)'s inbuilt limitation requiring regard to public interest, the administration of justice and the need to avoid abuse of the legal process, as set out in Dande.
Legal principles established
#- Civil and criminal proceedings may run in parallel; a criminal prosecution will only be quashed where it is employed to perpetuate ulterior motives or abuse the process of the court.
- An eviction order under sections 152A-152G of the Land Laws (Amendment) Act does not constitute a finding on the propriety of the applicant's title, and cannot found a claim that a subsequent prosecution over the same property is malicious.
- The Court of Appeal will not interfere with a discretionary decision of the High Court unless the judge misdirected himself in law, misapprehended the facts, took or failed to take account of relevant considerations, or the decision is plainly wrong.
- In judicial review the court's jurisdiction is supervisory, not appellate: it determines the legality or constitutionality of a decision but does not retake the decision.
Court orders
#- 1.Appeal dismissed
- 2.No order as to costs, given the circumstances giving rise to the appeal
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 Nairobi
- JR Misc. Application No. E086 of 2023
- Jurisdiction invoked
- First appellate jurisdiction of the Court of Appeal over the High Court's decision in a judicial review application
Relief refused
#Certiorari to quash the decision to charge the appellant and prohibition of the criminal prosecution and investigations
The Court found no ulterior motive or abuse of process; the ELC ruling did not determine the propriety of the appellant's title and multiple titles and ongoing investigations provided a basis for the charges
Costs
Appeal dismissed with no order as to costs, given the circumstances giving rise to the appeal
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.
We are, therefore, not persuaded that the criminal prosecution of the appellant was with ulterior motive or in abuse of the process of Court, and the trial Judge did not err in the conclusions reached to this efiect. We accordingly find this appeal not to have merit, and it is hereby dismissed with no order as to costs, given the circumstances giving rise to the appeal.
civil and criminal jurisdictions can run parallel to each other, and a criminal prosecution will only be quashed if it is being employed to perpetuate ulterior motives or to abuse of the process of the court in whatever manner.
No finding was made by the Judge in the ruling in ELC Misc. App. E050 of 2022 as regards the propriety of the appellant’s title and ownership of the suit property, which was not in any event the subject matter of the application
The Court of Appeal is only entitled to interfere if one or more of the following matters are established: first, that the judge misdirected himself in law; secondly, that he misapprehended the facts; thirdly, that he took account of considerations of which he should not have taken account; fourthly, that he failed to take account of considerations of which he should have taken account, or fifthly, that his decision, albeit a discretionary one, is plainly wrong.
Lastly, it is notable that the appellant still has the opportunity to state his case and defence including his entitlement to the suit property in the criminal proceedings.
Issues in the judgment
#Internal date inconsistency: the charge sheet is described as 'dated 10th July 2024' while the criminal case it instituted is Milimani Chief Magistrate Court Criminal Case No. E504 of 2023, filed in 2023; the judgment elsewhere describes the appellant as arrested and 'subsequently charged' following the 2023 eviction.
Typographical inconsistency in the cited sections of the Land Laws (Amendment) Act: the quotation from the ELC ruling reads 'Section 152A, 1528, 152E & 152G' (1528 apparently an error for 152B).
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kariuki v Director of Public Prosecutions & 3 others (Civil Appeal E331 of 2024) [2026] KECA 203 (KLR)", Case Analysis (2026). Civil Appeal (JR Misc. Application No. E086 of 2023 appeal). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/203/eng@2026-02-06
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.