Muangi & another v Inspector General, National Police Service & 4 others; Somoni (Cross Petitioner); Inspector General of Police & 5 others (Respondent) (Environment and Land Petition E018 of 2023) [2025] KEELC 5632 (KLR)
The bottom line
#A Kenyan court stopped criminal investigations into a family property dispute already before civil courts, ruling the investigations abused constitutional rights.
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 investigations by the 1st and 3rd Respondents contravened the sub judice rule.
- 2.Whether the Petition satisfied the test of specificity set out in the Anarita Karimi case, and if so, if it is merited.
- 3.Whether the 2nd Respondent's decision on 25th March 2024 violated the Cross Petitioner's Constitutional rights.
Key legal issues
#Whether criminal investigations over property subject to pending civil suits contravene the sub judice rule
Investigations cannot be sub judice; the rule applies only to court proceedings, and Section 193A CPC permits concurrent civil and criminal proceedings. However, the investigations here violated the Petitioners' constitutional rights and interfered with the integrity of the civil proceedings.
The court found the sub judice rule inapplicable to police investigations as Section 6 of the Civil Procedure Act governs court proceedings. However, the Petitioners established that the 1st and 3rd Respondents persisted with investigations and summons despite existing civil suits and conservatory orders over the same properties, amounting to abuse of process and violation of rights under Articles 25, 27, 28, 40, 47 and 50.
Whether the Petition met the Anarita Karimi specificity threshold, particularly against the DPP
The Petition fell short of the threshold against the 2nd Respondent, who had already declined to charge the Petitioners, but merited relief against the 1st and 3rd Respondents.
No criminal charges had been instituted and the DPP had communicated that the parties should pursue their claims in the ELC; the Petitioners therefore failed to demonstrate with particularity how the DPP infringed their rights. As to the investigating agencies, the Petitioners adduced evidence of investigations and summons notwithstanding pending civil suits, establishing a basis for the court to interfere.
Whether the DPP's decision of 25th March 2024 not to prosecute violated the Cross Petitioner's rights
No violation; the court agreed with the DPP's reasons and cannot compel prosecution.
The court reviewed Article 157(11) and authorities holding that judicial interference with a DPP's decision not to prosecute must be sparing, and that where a decision is unlawful the court can only remit for reconsideration. The DPP's reason - that prosecuting while conservatory orders subsisted in civil suits would be an abuse of process - was one the court agreed with, so the Cross Petition failed in its entirety.
Legal principles established
#- The sub judice rule under Section 6 of the Civil Procedure Act applies to court proceedings and does not extend to investigative processes by law enforcement agencies.
- Concurrent civil and criminal proceedings are permitted under Section 193A of the Criminal Procedure Code.
- Courts may interfere with investigations or prosecutions where they are actuated by bad faith, ulterior motives or abuse of process, particularly where civil suits over the same subject matter are pending.
- The DPP's discretion under Article 157 is independent but not absolute; where a decision not to prosecute is unlawful, the court may only remit the matter for reconsideration, not direct prosecution.
Court orders
#- 1.A declaration that the 1st and 3rd Respondents have violated the Petitioners' rights guaranteed under Articles 25, 27, 28, 40, 47 and 50 of the Constitution of Kenya 2010
- 2.A declaration that the investigations complained of have the effect of directly interfering with the integrity of proceedings in Milimani High Court Family Division Matrimonial Case No. E051 of 2023, Kajiado ELC E083 of 2022 and Milimani ELC E343 of 2022 and as such are unconstitutional
- 3.An order of prohibition directed to all the Respondents prohibiting them from opening, reopening, bringing, instigating, instituting or prosecuting any criminal proceedings against the Petitioners in relation to the suit properties
- 4.The Cross Petition is dismissed
- 5.Each party to bear its own costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Articles 22, 23 and 165 of the Constitution of Kenya 2010 (constitutional petition for enforcement of fundamental rights)
Relief refused
#The Cross Petition in its entirety, including declarations that the DPP's decision of 25th March 2024 violated Articles 10, 157(11) and 232(1) and damages
The court cannot compel or substitute its own view for the DPP's decision not to prosecute; the DPP's reliance on pending civil cases was proper
Costs
Each party to bear its own 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.
The sub judice rule, as contemplated under Section 6 of the Civil Procedure Act, applies strictly to proceedings before a court of law and does not extend to investigative processes undertaken by law enforcement agencies in the exercise of their constitutional and statutory mandate.
while courts are empowered to review and, where appropriate, set aside decisions of the DPP that are unlawful or irrational, they cannot direct the DPP to prosecute.
A declaration be and is hereby issued that the 1st and 3rd Respondents have violated the Petitioners' rights guaranteed under Articles 25, 27, 28, 40, 47 and 50 of the Constitution of Kenya 2010.
An order of prohibition is hereby directed to all the Respondents prohibiting them from opening or purporting to reopen, bringing, instigating, instituting or prosecuting any criminal proceedings against the Petitioners in relation to the suit properties
The Cross Petition is hereby dismissed.
Each party to bear its own costs.
Issues in the judgment
#Internal date inconsistencies in the narrative: the letter reversing the decision to prosecute is repeatedly dated 25th March 2024 while the Cross Petitioner is said to have learnt of it on 23rd May 2024 after writing on 6th May 2024 and 30th April 2024, and in one passage she is said to have learnt of the reversal on 23rd May 2023.
The Cross Petitioner's letter reporting the fraud to the DCI is dated 24th April 2024, yet the response letter is dated 23rd May 2023, an earlier date.
Petitioners' relief (e) is granted against 'all the Respondents' by prohibition, including the 2nd Respondent against whom the Petition was held to fail on specificity.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Muangi & another v Inspector General, National Police Service & 4 others; Somoni (Cross Petitioner); Inspector General of Police & 5 others (Respondent) (Environment and Land Petition E018 of 2023) [2025] KEELC 5632 (KLR)", Case Analysis (2025). ELC Petition No. E018 of 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/5632/eng@2025-07-29
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.