Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELCDismissedJudicial Review Miscellaneous Application (Notice of Motion dated 30th September 2022)

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)

High Court of Kenya
29 January 2025
7,619 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~30 min to read original · ~4 min brief

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

#
By a notice of motion dated 30th September 2022, filed with leave granted on 14th April 2021, three ex parte applicants - administrators and beneficiaries of the estate of the late Gideon Kisini Musau - sought certiorari to quash and prohibition against summons dated 17th March 2021 issued by the Director of Criminal Investigations, on account of investigations into alleged fraud over land parcels Machakos/Nguluni/2803, 2804 and 2805, the subject of pending Machakos ELC Case No. E029 of 2020 in which they had obtained interim injunctive orders. They argued the summons were issued in bad faith, at the behest of the defendants in that suit, were ultra vires, irrational, and an interference with ongoing civil proceedings. The respondents opposed, relying on their statutory mandate under the National Police Service Act and section 193A of the Criminal Procedure Code permitting concurrent civil and criminal proceedings. Justice A. Nyukuri framed a single issue: whether the applicants were entitled to the judicial review orders. The court applied the established framework of illegality, irrationality and procedural impropriety, and the authorities requiring sparing intervention where criminal and civil proceedings arise from the same facts. It held that pendency of the ELC suit is not itself a bar to police investigation; the applicants failed to demonstrate bad faith (partly because they did not join the complainants as interested parties), failed to establish ultra vires conduct, and failed to show how recording statements would defeat the injunction. Contempt claims, it held, must be raised in the ELC suit itself. The motion was dismissed with no order as to costs.

Questions the Court framed

#

The issues the Court set itself to decide, in its own words.

  1. 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

#
01

Whether the DCI's summons of the applicants pending Machakos ELC Case No. E029 of 2020 was unlawful, irrational or an abuse of power

Holding

The application was dismissed; the summons were lawful, and the applicants failed to establish illegality, irrationality, abuse of power or ultra vires conduct.

Reasoning

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.

p. 13
02

Whether contempt of the ELC injunction orders could be raised in a separate judicial review suit

Holding

No; contempt of orders of a superior court must be pursued within the same proceedings where the orders were issued.

Reasoning

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.

p. 12

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. 1.The application dated 30th September 2022 is dismissed
  2. 2.No order as to costs

The bench

#

One judgment of the whole court — no separate or dissenting opinions.

majority

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

p. 13

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

p. 10

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.
p. 13Final orders – dismissal and 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.
p. 10Concurrent civil and criminal proceedings – section 193A
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
p. 11Standard for judicial review intervention in criminal investigations
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.
p. 12Contempt must be pursued in the proceedings where orders issued

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.