Kisini (Suing as the administrators of the Estate of Gideon Kisini Musau, Deceased for the benefit of the Estate and its beneficiaries and on the Estate) & 2 others v Attorney General & another (Judicial Review E004 of 2021) [2025] KEELC 235 (KLR)
The bottom line
#The High Court in Machakos dismissed an attempt to stop police summons, confirming that an ongoing civil land case does not block a criminal investigation.
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 applicants are entitled to judicial review orders of certiorari and prohibition against the summons issued by the 2nd respondent dated 17th March 2021
Key legal issues
#Whether the DCI's summons of the applicants pending Machakos ELC Case No. E029 of 2020 was unlawful, irrational or an abuse of power
The application was dismissed; the summons were lawful, and the applicants failed to establish illegality, irrationality, abuse of power or ultra vires conduct.
The court held that section 193A of the Criminal Procedure Code permits concurrent civil and criminal proceedings over the same facts, so pendency of the ELC suit does not bar police investigation. The DCI has statutory power under sections 24, 35 and 52 of the National Police Service Act to summon persons reasonably believed to hold relevant information. The applicants did not join the complainants (the defendants in the ELC suit), did not show bad faith, and did not show how the summons would defeat the interim injunction. Intervention is reserved for the clearest of cases.
Whether contempt of the ELC injunction orders could be raised in a separate judicial review suit
No; contempt of orders of a superior court must be pursued within the same proceedings where the orders were issued.
Relying on section 5 of the Judicature Act, the court held that alleged contempt of the interim injunction in Machakos ELC Case No. E029 of 2020 should be raised in that suit, where the defendants-complainants can also be heard. The applicants were also faulted for not joining the ELC defendants as interested parties, which risked condemning them unheard.
Legal principles established
#- The pendency of civil proceedings does not itself bar police investigation of crime based on the same facts (section 193A Criminal Procedure Code)
- The court's power to halt criminal process on the same transaction as pending civil proceedings must be exercised sparingly in the clearest of cases
- A statutory power to summon must be exercised in good faith, intra vires, reasonably and rationally, and the court may intervene where it is not
Court orders
#- 1.The application dated 30th September 2022 is dismissed
- 2.No order as to costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Judicial review jurisdiction of the High Court pursuant to leave granted by the court on 14th April 2021; orders of certiorari and prohibition under the Law Reform Act/Order 53
Relief refused
#Order of certiorari quashing the summons in the letter dated 17th March 2021
Applicants failed to demonstrate abuse of power, illegality, procedural impropriety or ultra vires conduct by the 2nd respondent
Orders of prohibition against implementation of the summons and interference with the suit property
No nexus between the summons and defeating the injunction; pendency of civil proceedings is not a bar under section 193A of the Criminal Procedure Code
Costs
I make no order as to 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.
I therefore find no merit in the application dated 30th September 2022, which I hereby dismiss. I make no order as to costs.
It is clear therefore that the pendency of a civil dispute in court does not of itself amount to a bar against the police investigating crime relating to the same facts as those upon which the civil proceedings are premised.
the power of court to grant judicial review in regard to institution of criminal proceedings on the same transaction where civil proceedings are already pending, ought to be exercised sparingly in the clearest of cases
questions of contempt of the orders made in Machakos ELC E029 of 2020 can only be raised in that suit and not in a separate suit.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kisini (Suing as the administrators of the Estate of Gideon Kisini Musau, Deceased for the benefit of the Estate and its beneficiaries and on the Estate) & 2 others v Attorney General & another (Judicial Review E004 of 2021) [2025] KEELC 235 (KLR)", Case Analysis (2025). Judicial Review Miscellaneous Application (Notice of Motion dated 30th September 2022). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/235/eng@2025-01-29
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.