SC Case JR Danye

Dande & 3 others v Inspector General, National Police Service & 5 others (Petition 6 (E007), 4
(E005) & 8 (E010) of 2022 (Consolidated)) [2023] KESC 40 (KLR) (16 June 2023) (Judgment)
Neutral citation: [2023] KESC 40 (KLR)
REPUBLIC OF KENYA
IN THE SUPREME COURT OF KENYA
PETITION 6 (E007), 4 (E005) & 8 (E010) OF 2022 (CONSOLIDATED)
MK KOOME, CJ, SC WANJALA, NS NDUNGU, I LENAOLA & W OUKO, SCJJ
JUNE 16, 2023
BETWEEN
EDWIN HAROLD DAYAN DANDE ............................................... 1ST APPELLANT
ELIZABETH NAILANTEI NKUKUU ............................................ 2ND APPELLANT
PATRICIA NJERI WANJAMA ........................................................ 3RD APPELLANT
CYTONN INVESTMENTS MANAGEMENT LIMITED ............. 4TH APPELLANT
AND
THE INSPECTOR GENERAL, NATIONAL POLICE SERVICE .... 1ST
RESPONDENT
THE DIRECTOR, THE DIRECTORATE OF CRIMINAL
INVESTIGATIONS ....................................................................... 2ND RESPONDENT
BRITISH AMERICAN ASSET MANAGERS LIMITED ........... 3RD RESPONDENT
THE DIRECTOR OF PUBLIC PROSECUTIONS .................... 4TH RESPONDENT
THE CHIEF MAGISTRATE’S COURT AT NAIROBI .............. 5TH RESPONDENT
BRITISH AMERICAN INVESTMENTS CO. (K) LTD ............. 6TH RESPONDENT
(Being an Appeal from Judgments of the Court of Appeal at Nairobi (Makhandia, Ngugi
& Nyamweya JJA) in Civil Appeal Nos. 246 of 2016, 378 of 2018, and 147 of 2019
delivered on 18th February 2022, 4th February 2022, and 4th March 2022 respectively.)
A judicial review court ought to carry out a merit review of a case when a party approaches it under
the provisions of the Constitution
The appeals arose from various civil suits seeking restitution of funds allegedly fraudulently transferred by the
1st to 3rd appellants without their then employer’s (the 3rd respondent) approval and criminal proceedings were
instituted against the appellants. The court held that judicial review was no longer a strict administrative law
remedy but also a constitutional fundamental right enshrined in the Constitution. The court further held that
when a party approached a court under the provisions of the Constitution then the court ought to carry out a merit
kenyalaw.org/caselaw/cases/view/260605/ 1
review of the case. However, if a party filed a suit under the provisions of Order 53 of the Civil Procedure Rules
and did not claim any violation of rights or even violation of the Constitution, then the court could only limit itself
to the process and manner in which the decision complained of was reached or action taken and not the merits of
the decision per se.
Reported by Kakai Toili
Jurisdiction - jurisdiction of the High Court - jurisdiction of the High Court in judicial review matters -
jurisdiction to conduct merit review - when could the High Court excising its judicial review jurisdiction carry out
a merit review of a case - whether the High Court could conduct a merit review where in a judicial review matter
there were claims of violations of constitutional provisions - order 53.
Judicial Review - judicial review under the - nature of judicial review under the - what was the nature of
judicial review under the - whether the scope of judicial review under the Constitution included a merit review as
opposed to a strict process review on the manner in which a decision was made or an action was undertaken.
Constitutional Law - fundamental rights and freedoms - enforcement of fundamental rights and freedoms -
right to access information - nature of the right to access information - what were the requirements to be met for
the enforcement of the right to access information held by another person and required for the exercise or protection
of a right or fundamental freedom - , 2010 article 35; , No 31 of 2016, sections 2 and 4.
Jurisdiction - jurisdiction of courts - jurisdiction in reviewing prosecutorial powers - what were the guidelines to
be considered by courts when reviewing prosecutorial powers.
Civil Practice and Procedure - appeals - appeals to the Supreme Court - appeals as of right in any matter
involving the interpretation or application of the Constitution - what were the requirements for one to appeal to
the Supreme Court as of right in any matter involving the interpretation or application of the Constitution - of
Kenya, 2010, article 163(4)(a).
Civil Practice and Procedure - doctrine of mootness - nature of the doctrine of mootness - what was the nature
of the doctrine of mootness - existence of a live controversy between litigants - whether a matter had been overtaken
by events - whether there was a live controversy where a decision to prosecute had already been made and orders
were being sought to prevent the arrest and charging of suspects.
Words and Phrases - judicial review - definition of judicial review - a court’s power to review the actions of
other branches or levels of government; especially the court’s power to invalidate legislative and executive actions
as being unconstitutional; the constitutional doctrine providing for this power; a court’s review of a lower courts or
an administrative body’s factual or legal findings; Edition.
Brief facts
The 1st to 3rd appellants were senior employees of the 3rd respondent, a subsidiary of British American Asset
Managers Company (K) Ltd (Britam). Sometime in 2013 and during the course of the appellants’ employment,
the 3rd respondent entered into a joint-venture project with Acorn Group Limited (Acorn) for the development
of real estate and other business ventures, within Nairobi County and elsewhere.
A dispute arose between Britam and the appellants resulting in the resignation of the 1st to 3rd appellants.
Subsequently, the 1st to 3rd appellants formed a rival company, the 4th appellant. As a consequence, the 3rd
respondent instituted various civil suits against the appellants and Acorn seeking restitution of funds allegedly
fraudulently transferred by the 1st to 3rd appellants to Acorn and its aliates without its approval. The 3rd
respondent also lodged complaints against the appellants with their various professional bodies. In addition,
criminal proceedings against the appellants were instituted upon complaints lodged by the 3rd respondent.
Aggrieved, the appellants led two judicial review applications and a constitutional petition at the High Court.
The suits were determined separately.
Judicial Misc Case No 435 of 2014, Republic v Director of Criminal Investigation Department & 4
others Ex-Parte Edwin Harold Dayan Dande & 4 others
The appellants sought an order of prohibition to prohibit the 1st respondent, Inspector General of the
Police National Police Service (Inspector General) and the 2nd respondent, Director of Criminal Investigation
Department (DCI) from arresting, harassing, and or otherwise interfering with their liberty and property. The
remedies sought were premised on inter alia grounds that the Inspector General and DCI had ulterior motives
in arresting them which amounted to abuse of power by the latter and that the manner in which they were
handled during arrest, interrogation, and process leading to the decision to charge them by the 4th respondent,
the Director of Public Prosecution (DPP) was discriminatory, unfair and irrational.
The High Court declined to grant the reliefs sought by the appellants stating that it would be pre-emptive
and presumptuous to do so as the DPP was yet to make any decision on the matter. The court nonetheless
issued an order prohibiting the Inspector General and DCI from taking any action in the nature of criminal
proceedings until the DPP had determined whether to charge the appellants or not. Subsequently, the DPP
decided to institute criminal proceedings in which the appellants were charged with two counts of theft by
servant. Consequently, the 1st to 3rd appellants led another judicial review application.
Judicial Review Application No 8 of 2017, Republic v Director of Public Prosecutions & 2 Others
Ex Parte Edwin Harold Dayan Dande & 3 Others
In the application, the 1st - 3rd appellants applied for orders of certiorari to quash the decision of the DPP
to institute criminal proceedings against them as well as the resultant criminal proceedings and prohibition
barring the Chief Magistrate’s Court from hearing and determining the criminal case. The prayers were
premised on inter alia grounds of abuse of power and unreasonableness by the DPP. They also claimed
that the decision to prosecute them was in contravention of the order made by the High Court in Judicial
Review Application No 435 of 2014 staying their arrest and prosecution pending the determination of their
application for stay of execution. The High Court dismissed the appellants' case and stated that the power to
quash criminal proceedings should only be exercised in exceptional cases.
Petition No 539 of 2016, Edwin Harold Dayan Dande & 3 others v British American Investments
Co (K) Ltd & another
The 1st to 3rd appellants in the petition prayed for a declaration that the respondents violated their right to
access information and an order compelling the respondents to provide them with the settlement agreement
entered into between the 3rd respondent and Acorn in HCCC Nos 352, 353, 354, 361, and 362 of 2014; the
forensic audit performed by KPMG on the books of the 3rd respondent; and the legal audit performed by Messrs
Coulson Harney, Advocates. The prayers were premised on the grounds inter alia that the information and
documents sought were for the vindication of the appellants’ rights to human dignity and for the correction or
deletion of untrue or misleading information aecting them. The High Court held that the appellants’ rights
to access information were violated and issued an order compelling the respondents to provide them with the
documents sought.
The three decisions of the High Court triggered the same number of appeals at the Court of Appeal.
Civil Appeal No 246 of 2016, Edwin Harold Dayan Dande & 4 others v Inspector General, National
Police Service & 2 others
The appeal was against the judgment of the High Court in Judicial Review Misc Application No 435 of
2014. The Court of Appeal dismissed the appeal and agreed with the ndings of the High Court that the
settled standards of judicial review known to Kenya’s realm limit a judicial review court’s intervention in any
application for a merit review. In addition, it determined that, since no decision had at that point in time been
made to charge the appellants, any such ndings by the High Court would not only have been prejudicial but
also in direct contravention of the constitutional provisions on the independence of the Inspector General and
DCI in the investigation of crimes.
Civil Appeal No 378 of 2018, Edwin Harold Dayan Dande & 3 others v Director of Public
Prosecutions & 2 others
The appeal was against the decision of the High Court in Judicial Review Application No 8 of 2017. The
Court of Appeal held that the appeal was devoid of merit and dismissed it with costs on the main ground
that there was no order of stay by any court directed at the DPP barring or prohibiting him from instituting a
criminal case against the appellants as at the time he decided to charge them.
Civil Appeal No 147 of 2019, British American Investments Co (K) Ltd & Another v Edwin Harold
Dayan Dande & 3 others
The 3rd respondent and the 6th respondent led the appeal seeking that the judgment and decree of the High
Court in Petition No 539 of 2016 be set aside and substituted with an order dismissing the appellants' petition
with costs. The Court of Appeal allowed the appeal with costs holding that the trial court erred in granting the
orders sought. The court observed that a party seeking information from a private entity needed to show the
right he sought to exercise or protect, the information which was required in order to exercise or protect the
right, and how that information would assist him in exercising or protecting the right. The Court of Appeal
further observed that a party requesting information from a private person must place before the court a
demonstrable and sucient link between the right sought to be exercised or protected and the information
requested.
Dissatised by the judgments of the Court of Appeal, the instant consolidated appeal was led before the
Supreme Court.
Issues
i. When could the High Court in exercising its judicial review jurisdiction carry out a merit review of
a case?
ii. What was the nature of judicial review under the ?
iii. What were the requirements to be met for the enforcement of the right to access information held by
another person and required for the exercise or protection of a right or fundamental freedom?
iv. What was the nature of the right to access information?
v. What were the guidelines to be considered by courts when reviewing prosecutorial powers?
vi. What were the requirements for one to appeal to the Supreme Court as of right in any matter involving
the interpretation or application of the Constitution?
vii. What was the nature of the doctrine of mootness?
Held
1. An appeal lay to the court under article163(4)(a) of the of Kenya, 2010 (Constitution), if the issues
placed before it revolved around the interpretation and application of the and the interpretation or
application of the had formed the basis for the determinations at the superior courts below the court
and the same issue had therefore progressed through the normal appellate mechanism to reach the
court.
2. From a perusal of the record, the issues before the superior courts revolved around the interpretation
and application of the . The basis of the superior courts’ decisions revolved around the interpretation
and application of the , and therefore, the appellants had properly invoked the jurisdiction of the court
under article 163(4)(a) of the .
3. The doctrine of mootness required that controversy must exist throughout judicial proceedings
including at the appellate level. An appeal or an issue was moot when a decision would not have the
eect of resolving a live controversy aecting or potentially aecting the rights of parties. Such a live
controversy must be present not only when the action or proceeding was commenced but also when
the court was called upon to reach a decision. The doctrine of mootness was therefore based on the
notion that judicial resources ought to be utilized eciently and should not be dedicated to an abstract
proposition of law and that courts should avoid deciding on matters that were abstract, academic, or
hypothetical.
4. There existed no live controversy on the question of restraining the Inspector General, DCI and DPP
from arresting and charging the appellants as the adverse decision to prosecute the appellants had
already taken place and on the existing facts, there was no imminent threat to arrest or charge the
appellant again.
5. Judicial review was introduced to Kenya from England in 1956 through sections 8 and 9 of the , Cap
26. The jurisdiction to hear and determine judicial review was then vested in the High Court. Under
that system, the High Court could issue orders of mandamus, prohibition, and certiorari. The grounds
for the issuance of such orders were borrowed from common law. Prior to the promulgation of the of
Kenya, 2010, there were two legal foundations for the exercise of the judicial review jurisdiction by the
Kenyan courts found in sections 8 and 9 which constituted the substantive basis for judicial review of
administrative actions on the one hand, and, order 53 of the which was the procedural basis of judicial
review of administrative actions, on the other hand.
6. The entrenchment of judicial review under the elevated it to a substantive and justiciable right
under the . Accordingly, judicial review was no longer a strict administrative law remedy but also
a constitutional fundamental right enshrined in the . Thus, article 47 of the provided that every
person had a right to an administrative action that was expeditious, ecient, lawful, reasonable and
procedurally fair.
7. The entrenchment of judicial review in the had led to the emergence of divergent views on the scope
of judicial review. The rst group postulated that judicial review was concerned with the process
a statutory body employed to reach its decision and not the merits of the decision itself while the
second group opined that under the current constitutional dispensation, courts could delve into both
procedural and merit review in resolving disputes.
8. When a party approached a court under the provisions of the then the court ought to carry out a
merit review of the case. However, if a party led a suit under the provisions of order 53 of the Civil
Procedure Rules and did not claim any violation of rights or even violation of the , then the court could
only limit itself to the process and manner in which the decision complained of was reached or action
taken and not the merits of the decision per se.
9. The appellants invoked the judicial review jurisdiction of the High Court alleging that their rights to
among others, fair administrative action under article 47 of the were violated, and applied for judicial
review orders under article 23 of the . The appellants had clothed their grievances as constitutional
questions believing that their fundamental rights had been violated. Therefore, that required the
superior courts to conduct a merit review of the questions before them and dismissal of their plea as
one requiring no merit review was misguided.
10. A court could not issue judicial review orders under the if it limited itself to the traditional review
known to common law and codied in order 53 of the Civil Procedure Rules. The dual approach to
judicial review existed but that approach must be determined based on the pleadings and procedure
adopted by parties at the inception of proceedings.
11. The Oce of the Inspector General of the National Police Service was established under article 245(1)
of the . The power to investigate crimes was vested in the Inspector General by dint of article 245(4).
Article 243(1) of the established the National Police Service, and the gave full eect to that article.
From a review of the constitutional and statutory provisions therein, the Inspector General and the
Director, DCI had the mandate to perform multi-faceted functions as provided under articles 244 and
245 of the .
12. A court should only interfere with the powers granted to the Inspector General and the DCI under
articles 244 and 245 of the and under the provisions of the if the constitutional and statutory provisions
were not adhered to or if the actions were illegal and unlawful.
13. A perusal of the record conrmed that even though the appellants alleged abuse of power by the
Inspector General and DCI, no evidence was brought forth to prove that they actually acted beyond
their constitutional mandate or that their actions amounted to an abuse of oce. The appellants did
not prove that the Inspector General and DCI abused their investigative or arrest powers as conferred
by the and statute.
14. The Oce of Director of Public Prosecution was established under article 157 of the . The functions
of the DPP were provided for under article 157(6). The provided an inbuilt limitation on the powers
of the DPP under article 157(11) which provided that in exercising the powers conferred by the article,
the DPP shall have regard to the public interest, the interests of the administration of justice and the
need to prevent and avoid abuse of the legal process.
15. Article 157(10) of the anticipated the independence of the oce of the DPP in the performance of its
constitutional obligation, providing that in the exercise of its powers or functions, it shall not be under
the direction or control of any person. That was important as it protected the integrity of a criminal
process.
16. The following guidelines were to be considered by courts when reviewing prosecutorial powers;
1. where institution/continuance of criminal proceedings against an accused may amount to the
abuse of the process of the court or that the quashing of the impugned proceedings would
secure the ends of justice; or
2. where it manifestly appeared that there was a legal bar against the institution or continuance
of the proceeding, for example want of sanction; or
3. where the allegations in the rst information report or the complaint taken at their face value
and accepted in their entirety, did not constitute the oence alleged; or
4. where the allegations constituted an oence alleged but there was either no legal evidence
adduced or evidence adduced clearly or manifestly failed to prove the charge.
17. The record revealed that the appellants did not provide any evidence to prove that the Oce of the
DPP did not meet the expectations required of it under article 157(11) of the or that the action to
prosecute them amounted to abuse of the process of the court. At the time of instituting the criminal
proceedings, there was no legal bar preventing them from prosecuting the appellants. The charges the
accused were facing constituted oences under the laws of Kenya and therefore, it was proper that they
be subjected to the due process of the law. Their innocence was intact and there was no apparent risk
that they would not face a fair trial where the duty lay on the DPP to prove their culpability.
18. From section 193A of the Criminal Procedure Code, both civil and criminal jurisdictions could run
parallel to each other and neither could stand in the way of the other unless either of them was being
employed to perpetuate ulterior motives or generally to abuse of the process of the court in whatever
manner. The circumstances in the ), (Jirongo case) were dierent from the instant case. In the , it was
proved that the criminal case was instituted to force the accused person’s hand to compromise the civil
case between him and the complainant. Such unlawful action should not and could not be tolerated.
However, in the instant case, the appellants did not prove that the same was perpetuated for ulterior
motives or amounted to an abuse of the court process or oce.
19. The right to access to information was a fundamental right upon which other rights guaranteed in
the Bill of Rights could be realized. That right encompassed the right to seek and receive information
and was guaranteed to every citizen. Traditionally, the right to access to information had been utilized
to render public authorities accountable and to promote transparency in the public sector. However,
there had been a paradigm shift in substantial measures from the demand for information from
public bodies to private bodies and that was an important guard against abuses, mismanagement, and
corruption. Therefore, the codication of the right to information from private bodies in the was one
of the major milestones in the protection of the right to access to information.
20. Article 35 of the provided for the right to access to information. Similarly, section 4 of the , No 31
of 2016 which was enacted to give eect to the rights under article 35 provided for the right of access
to information held by the State and information held by another person and was required for the
exercise or protection of any right or fundamental freedom. The right to access to information was also
contained in several international conventions and treaties ratied by Kenya.
21. The dened both a public body and a private body under section 2. Under article 35(1)(b) of the , the
right to access to information was not unlimited because a requester must, as a prerequisite, establish
that he or she wished to exercise or protect a right and that access to the record was required in
order to exercise or protect that right. A requester seeking to enforce his right under article 35(1)(b)
needed to demonstrate the right to be protected; and that access to the information was required to
exercise or protect that right. The appellants properly identied the rights that they sought to protect.
The appellants did not establish a demonstrable link between the rights they intended to exercise or
protected and the information requested.
Appeals partly allowed.
Orders
i. The appeal was moot in regard to the issue of prohibition of the 1st and 2nd respondents from arresting and
charging the appellants.
ii. Appeal No 6 (E007) of 2022 dated March 24, 2022 was disallowed save for a declaration that judicial
review proceedings brought under the provisions of the must involve a review of merits.
iii. Appeal No 4 (E005) of 2022 dated March 9, 2022 was disallowed.
iv. Appeal No 8 (E010) of 2022 dated April 12, 2022 was disallowed.
v. The appellants shall bear the costs of all the three appeals to be paid to the 1st, 2nd, 3rd, 4th and 6th respondents.
vi. The court directed that the sum of Kshs 6,000 be deposited as security for costs in each of the appeals therein
be refunded to the appellants.
Citations
Cases
1. Attorney-General & 2 others v Ndii & 79 others; Prof. Rosalind Dixon & 7 others (Amicus Curiae)
(Petition 12, 11 & 13 of 2021 (Consolidated); [2022] KESC 8 (KLR)) — Explained
2. Attorney General v Kituo Cha Sheria, Abebe Dadi Tullu & 6 others (Civil Appeal 108 of 2014;
[2017] KECA 773 (KLR)[2017]eKLR) — Applied
3. Communications Commission of Kenya, Attorney General, Ministry of Information
Communications and Technology, Signet Kenya Limited, Pan African Network Group Kenya Limited
& Startimes Media Limited v Royal Media Services Limited, Nation Media Services Limited, Standard
Media Group Limited, Consumer Federation of Kenya (COFEK), Gotv Kenya Limited & West Media
Limited (Petition 14, 14A, 14B & 14C of 2014; [2015] KESC 13 (KLR)[2014] eKLR) — Explained
4. Erad Suppliers & General Contractors Ltd v National Cereals & Produce Board (SC Petition No 5 of
2012; [2012]eKLR) — Applied
5. Institute for Social Accountability & another v National Assembly & 3 others & 5 others (Petition
1 of 2018; [2022] KESC 39 (KLR)) — Explained
6. Jasbir Singh Rai & 3 others v Tarlochan Singh Rai Estate of & 4 others, (SC Petition No 4 of 2012;
[2013] eKLR) — Explained
7. Jirongo v Soy Developers Ltd & 9 others (Petition 38 of 2019; [2021] KESC 32 (KLR)) — Applied
8. Joho, Hassan Ali & Another v Shahbal, Suleiman Said & 2 Others, (SC Petition No 10 of 2013;
[2014]eKLR)
9. Judicial Service Commission & another v Njora (Civil Appeal 486 of 2019; [2021] KECA 366 (KLR)
[2021] eKLR) — Applied
10. Khalid, Hussein & 16 Others vs Attorney General & 2 others ([2019] eKLR) — Applied
11. Mahamud, Mohamed Abdi v Mohamad, Ahmed Abdullahi, Ahmed Muhumed Abdi, Gichohi
Gatuma Patrick & Independent Electoral and Boundaries Commission (Election Appeal 2 of 2018;
[2018] KECA 677 (KLR)[2018] eKLR) — Explained
12. Maina & 4 others v Director of Public Prosecutions & 4 others (Constitutional Petition
E106 & 160 of 2021 (Consolidated); [2022] KEHC 15 (KLR)) — Applied
13. Meixner & Another vs The Attorney General ((2005)1KLR189) — Applied
14. Moracha, Martha Kerubo v University of Nairobi ([2016] eKLR) — Applied
15. Muthiga, Benson Wachira vs Nairobi City County Public Service Board & another ([2015] eKLR)
— Applied
16. Nairobi Law Monthly Company Ltd vs Kenya Electricity Generating Company & 2 Others ([2013]
eKLR) — Applied
17. Ndung’u, Njuguna S. v Ethics & Anti-Corruption Commission (EACC), Director of Public
Prosecutions (DPP) & Inspector General of the National Police Service & Attorney General (Civil
Appeal 333 of 2014; [2018] KECA 47 (KLR) [2018] eKLR) — Applied
18. Nduttu, Lawrence & 6000 others vs Kenya Breweries Ltd & another, (SC Petition No 3 of 2012 [2012]
eKLR) — Explained
19. Njeru, Anarita Karimi v Republic (Miscellaneous Criminal Application 4 of 1979;
[1979] KEHC 30 (KLR) [1979] eKLR) — Applied
20. Nyawade, Mercy vs Banking Fraud Investigations Department & 2 others (Petition 143 of 2017,[2017]
eKLR) — Explained
21. Republic v Director of Public Prosecutions,Inspector General of Police & Chief Magistrate’s Court,
Kibera Law Courts;Evanson Muriuki Kariuki (Interested Party); Ex parte James M. Kahumbura
(Judicial Review 298 of 2018; [2019] KEHC 8824 (KLR) [2019]eKLR) — Applied
22. Rev Dr Timothy M Njoya & 6 others v The Hon attorney General & 4 others (? 82 of 2004;
[2004] KEHC 1467 (KLR)[2004] eKLR) — Explained
23. Saisi & 7 others v Director of Public Prosecutions & 2 others (Petition 39 & 40 of 2019 (Consolidated);
[2023] KESC 6 (KLR)) — Explained
24. SGS Kenya Limited v Energy Regulatory Commission,Public Procurement Administrative Review
Board & Intertrek Testing Services (Ea) Ltd (Petition 2 of 2019; [2020] KESC 64 (KLR)[2020] eKLR)
— Explained
25. Suchan Investment Limited v Ministry of National Heritage & Culture & 3 Others (Civil Appeal
46 of 2012; [2016] KECA 729 (KLR)[2016] KLR.) — Applied
26. Brummer v Minister for Social Development and Others ((CCT 25/09) [2009] ZACC21;2009) —
Applied
27. Cape Metropolitan Council vs Metro Inspection Services Western Cape CC and others ((10/99)
(2001)ZASCA) — Applied
28. M&G Media Ltd and Others v 2010 FIFA World Cup Organising Committee South Africa Ltd and
Another (2011 (5) SA 163 (GSJ)) — Explained
29. Arnab Rajan Goswami v Union of India, ((2020) 14 SCC 12) — Applied
30. Mohammed Zubair v State of Nct of Delhi, (Writ Petition (Criminal) No 279 of 2022) — Applied
Statutes
1. Access to Information Act (act no 31 of 2016) — Section 4(1)(b) — Interpreted
2. Civil Procedure Rules, 2010 (cap 21 sub leg) — Order 53 — Interpreted
3. Constitution of Kenya, 2010 — Article 22,23(3)(f),28,32(2),35(1)(b),47,48,50,157(10)(11),163(4)
(a),165(3)(b),244,245,245(4),259 — Interpreted
4. Law Reform Act (cap 26) — Section 8,9 — Interpreted
5. National Police Service Act (act no 11A of 2011) — Section 28 — Interpreted
6. Supreme Court Act (act no 7 of 2011) — Section 15(2) — Interpreted
7. Supreme Court Rules, 2020 (act no 7 of 2011 sub leg) — Rule 3(5),31,32 — Interpreted
Texts
1. Garner, BA., (Ed (2009), Black’s Law Dictionary (St Paul Minnesota: West Group 9th Edn)
2. Ryan, M., Foster, S (2014), Unlocking Constitutional and Administrative Law (Oxfordshire:
Routledge pp 506)
Advocates
Prof. Ojienda SC & Ms. Awuor for Appellants
Ms. Mwanza & Ms. Ngalyuka for 1st, 2nd & 4th respondents
Mr. Ngatia SC for 3rd & 6th respondents
JUDGMENT
Representation:
Prof. Ojienda SC & Ms. Awuor for the appellants
(Prof. Tom Ojienda & Associates)
Ms. Mwanza & Ms. Ngalyuka for the 1st, 2nd & 4th respondents
(Office of the Director of Public Prosecutions) Mr.
Ngatia SC for the 3rd & 6th respondents (Ngatia & Associates Advocates)
The 5th respondent did not appear and was not represented
A. Introduction
1. The appellants led three petitions of appeal before this court dated March 24, 2022, March 9, 2022
and April 12, 2022 pursuant to the provisions of article 163(4)(a) of the Constitution, section 15(2)
of the Supreme Court Act No 7 of 2011 and rules 3(5), 31 & 32 of the Supreme Court Rules, 2020. The
appeals arise out of the Judgments of the Court of Appeal at Nairobi (Makhandia, Ngugi & Nyamweya
JJA) in Civil Appeal Nos 246 of 2016, 378 of 2018, and 147 of 2019 delivered on February 18, 2022,
February 4, 2022, and March 4, 2022, respectively.
B. Background
2. The 1st - 3rd appellants were senior employees of British American Asset Managers Limited (BAAM),
a subsidiary of British American Asset Managers Company (K) Ltd (Britam), responsible for Unit
Trusts, Discretionary Portfolios, Cash Management Solutions, and Alternative Investments. At all
material times, the 1st appellant was the Chief Executive Ocer, the 2nd appellant was the Senior
Portfolio Manager and the 3rd appellant was the Assistant Company Secretary.
3. Sometime in 2013 and during the course of the appellants’ employment, BAAM entered into a joint-
venture project with Acorn Group Limited (Acorn) for the development of real estate and other
business ventures, within Nairobi County and elsewhere. Acorn was to be responsible for the real estate
development activities while BAAM was to be responsible for real estate nance and exit activities. It
was also a term in the agreement that BAAM would acquire a 25% stake in Acorn with two seats on
the Board and committee membership for oversight purposes. Thus, Acorn and BAAM became the
special purpose vehicles for the sole purpose of executing specic projects.
4. Following the joint-venture agreement, BAAM successfully carried out several Investments and even
launched the BAAM Cash Management System. However, when it attempted to launch the real
estate business, the same was allegedly not received well by Dr Wairegi, the then Managing Director
of Britam, who thought that the real estate should have been launched by Britam and not BAAM.
In several instances therefore, Britam communicated its misgivings about BAAM’s cooperation with
Acorn alleging among other things that, Acorn was not an expert in real estate.
5. Soon thereafter, a dispute arose between Britam and the appellants. The main issue in contention was
whether the 1st - 3rd appellants, as managers of BAAM, could commence any real estate project and sign
agreements directly with BAAM clients without any benet to Britam shareholders. As a result of the
dispute, the 1st - 3rd appellants resigned from Britam on various dates between August and September
2014. Subsequently, the 1st - 3rd appellants formed a rival company, Cytonn Investments Limited (the
4th respondent).
6. As a consequence, BAAM instituted various civil suits against the appellants and Acorn on or about
October 2014, seeking restitution of funds allegedly fraudulently transferred by the 1st - 3rd appellants
to Acorn and its aliates without BAAM’s approval under the guise of investing in real estate
as part of the joint venture aforesaid. BAAM also lodged complaints against the appellants with
various professional bodies to which they belonged, namely the Advocates Disciplinary Committee,
the Certied Financial Analyst Institute (CFA) and the Institute of Certied Public Accountants
(ICPAK). In addition, criminal proceedings against the appellants were instituted upon complaints
lodged by BAAM.
Proceedings at the High Court

7. Aggrieved, the appellants led two judicial review applications and a constitutional petition at the High
Court in Nairobi. The suits were subsequently determined separately. The details of those suits are set
out hereunder.
Judicial Misc Case No 435 of 2014, Republic v Director of Criminal Investigation Department & 4
others Ex-Parte Edwin Harold Dayan Dande & 4 others.
8. The appellants sought an order of prohibition to prohibit the Inspector General of the Police National
Police Service (Inspector General) and Director of Criminal Investigation Department (DCI) from
arresting, harassing, and or otherwise interfering with their liberty and property. They also sought an
order of mandamus to compel the Inspector General and DCI to return cell phones impounded from
them. The remedies sought were premised on inter alia grounds that the Inspector General and DCI
had ulterior motives in arresting them which amounted to abuse of power by the latter and that the
manner in which they were handled during arrest, interrogation, and process leading to the decision
to charge them by the Director of Public Prosecution (DPP) was discriminatory, unfair and irrational.
9. In a judgment dated September 14, 2016, Odunga J (as he then was), declined to grant the reliefs sought
by the appellants stating that it would be pre- emptive and presumptuous to do so as the DPP was
yet to make any decision on the matter. The court, furthermore, while declining to grant the orders
in the manner sought by the appellants nonetheless issued an order prohibiting the Inspector General
and DCI from taking any action in the nature of criminal proceedings until the DPP had determined
whether to charge the appellants or not.
10. Subsequently, on or about November 4, 2016, the DPP decided to institute criminal proceedings
in Nairobi Chief Magistrates Criminal Case No 1735 of 2016 Republic v Edwin Harold Dande,
Elizabeth Nailantei Nkukuu, Patricia Njeri Wanjama & Shiv Anoop Arora in which the appellants
were charged with two counts of theft by servant under section 281 of the Penal Code in the sums of
Kshs 1,161,465,388 and Kshs 10,132,368.50.
11. Consequent to the above action and pursuant to leave granted on February 1, 2017, the 1st - 3rd
appellants led another judicial review application as below.
Judicial Review Application No 8 of 2017, Republic v Director of Public Prosecutions & 2 others
ex parte Edwin Harold Dayan Dande & 3 Others
12. In the above application, the 1st - 3rd appellants applied for orders of certiorari to quash the decision of
the DPP to institute criminal proceedings against them as well as the resultant proceedings in Criminal
case No 1735 of 2016 Republic v Edwin Harold Dayan Dande & 3 others, and prohibition barring the
Chief Magistrate’s court from hearing and determining the criminal case. These prayers were premised
on inter alia grounds of abuse of power and unreasonableness by the DPP. They also claimed that the
decision by the DPP to prosecute them was in contravention of the order made by the High Court in
Judicial Review Application No 435 of 2014 on November 1, 2016 staying their arrest and prosecution
pending the determination of their application for stay of execution.
13. In a judgment delivered on September 11, 2018, Mativo J (as he then was), dismissed the appellants'
case. While underscoring the point that the power to quash criminal proceedings amounted to the
exoneration of a suspect before trial, the learned judge stated that such power should only be exercised
in exceptional cases where there was clear evidence of abuse of power, abuse of discretion, or absence
of any and obvious factual basis to mount the prosecution. The court also held that, determining the
veracity of evidence against accused persons was a preserve of the trial court and that the High Court’s
intervention could only be invoked if there were clear constitutional violations. The court further
observed that the appellants’ pursuit of two applications in two separate courts seeking the same reliefs
constituted an abuse of the court process. It also held that the appellants had not demonstrated that the
DPP did not act independently and that there was no evidence or factual basis to justify a prosecution.
14. Correspondingly, after the institution of Criminal case No 1735 of 2016 Republic v Edwin Harold
Dayan Dande & 3 others, the appellants' advocates requested for copies of a forensic audit carried out
by KPMG and legal audit by Messrs Coulson Harney, Advocates, together with settlement agreements
between the respondents and Acorn Group Limited which were recorded in HCCC Nos 352, 353,
354, 361, and 362 of 2014. They stated that they required the information to exonerate themselves in
the criminal proceedings instituted by the DPP. The letter did not solicit any response. Unrelenting,
the appellants led a constitutional petition at the High Court in a bid to obtain that information.
Petition No 539 of 2016, Edwin Harold Dayan Dande & 3 others v British American Investments
Co (K) Ltd & another
15. The 1st -3rd appellants in the above petition prayed for a declaration that the respondents violated their
right to access information under article 35(1)(b) of the Constitution and section 4(1)(b) of the Access
to Information Act No 31 of 2016; an order compelling the respondents to provide them with the
settlement agreement entered into between the 3rd respondent and Acorn in HCCC Nos 352, 353,
354, 361, and 362 of 2014 which formed the basis of the court orders given on October 22, 2015 by
Mbogholi Msagha, J; the forensic audit performed by KPMG on the books of the 3rd respondent as was
mentioned in paragraph 5 of Ms Carol Akinyi Ouko-Misiko’s witness statement sworn on October 27,
2014 and led in HCCC No 354 of 2014; and the legal audit performed by Messrs Coulson Harney,
Advocates, of all transactions handled by the appellants referred to in paragraph 17 of Jude Anyiko’s
adavit sworn on October 27, 2016 and led in HCCC No 354 of 2014.
16. The prayers were premised on the grounds inter alia that the information and documents sought were
for the vindication of the appellants’ rights to human dignity under article 28 of the Constitution and
for the correction or deletion of untrue or misleading information aecting them under article 35(2)
of the Constitution. The appellants further averred that the charges brought against them in Criminal
Cause No 1735 of 2016 related to the very sums that the respondents claimed in the civil suits, and
that without access to the information, they could not adequately prepare their defence thus denying
them a reasonable opportunity to a fair hearing.
17. Vide a judgment dated February 22, 2019, Mwita, J held that the appellants’ rights to access
information under article 35(1)(b) of the Constitution as read with section 4(1)(b) of the Access to
Information Act No 31 of 2016 were violated and issued an order compelling the respondents to
provide them with the documents sought plus costs of the petition. The learned judge in doing so,
held that the appellants were entitled to know the outcomes of the audits, and the terms of the
settlement agreement having been co-defendants in the civil suits. He further found that BAAM and
the 6th respondents had failed to identify the commercial interests and prejudice to be suered if the
information was disclosed noting that the dispute was, in any event, already in the public domain.
Proceedings at the Court of Appeal

18. The three decisions of the High Court triggered the same number of appeals at the Court of Appeal.
Their details are set out below.
Civil Appeal No 246 of 2016, Edwin Harold Dayan Dande & 4 others v Inspector General, National
Police Service & 2 others
19. The appellants led an appeal, Civil Appeal No 246 of 2016, against the Judgment of Odunga J (as he
then was) in Judicial Review Misc Application No 435 of 2014 seeking that the judgment of the High
Court at Nairobi be reversed and that the appellants' Notice of Motion dated November 14, 2014 be
allowed with costs.
20. In a judgment delivered on February 18, 2022, the Court of Appeal dismissed the appeal with no orders
as to costs. In doing so, the Court of Appeal agreed with the ndings of the High Court that the
settled standards of judicial review known to our realm limit a judicial review court’s intervention in
any application for a merit review. In addition, it determined that, since no decision had at that point
in time been made to charge the appellants, any such ndings by the High Court would not only have
been prejudicial but also in direct contravention of the constitutional provisions on the independence
of the Inspector General and DCI in the investigation of crimes.
Civil Appeal No 378 of 2018, Edwin Harold Dayan Dande & 3 others v Director of Public
Prosecutions & 2 others
21. Likewise, the appellants challenged the judgment of Mativo, J (as he then was) in Judicial Review
Application No 8 of 2017 vide Civil Appeal No 378 of 2018. They raised seventeen grounds of appeal
which the Court of Appeal collapsed into one issue; whether the appellants were deserving of the orders
of certiorari and prohibition as sought in their substantive Motion before the High Court.
22. The Court of Appeal, in a judgment delivered on February 4, 2022, held that the appeal was devoid
of merit and dismissed it with costs on the main ground that there was no order of stay by any court
directed at the DPP barring or prohibiting him from instituting a criminal case against the appellants
as at the time he decided to charge them on November 4, 2016. The court further observed that the
order by Odunga, J in Judicial Review Application No 435 of 2014 was specically directed at the
Inspector General and the DCI. Further, the order was limited in its application and was rendered
otiose when the DPP decided to charge the appellants. Therefore, it could not be said that the DPP
was bound by the order.
23. The Court of Appeal also observed that even though no party pleaded abuse of the court process, the
trial court’s attention was drawn to Judicial Review Application No 435 of 2014, therefore, the trial
court could not be faulted for holding that the proceedings before it was an abuse of the court process.
The Court of Appeal also upheld the High Court’s decision that there was no evidence demonstrating
that the DPP had been inuenced or pressured by BAAM.
Moreover, there was no evidence that criminal proceedings were instituted to compel the settlement
of the civil suits. The Court of Appeal, in addition, underscored the provisions of article 157(10) and
(11) of the Constitution on the independence of the oce of DPP in the exercise of its functions and
ultimately found that the appellants were not deserving of the orders of certiorari and prohibition
sought in their substantive Motion.
Civil Appeal No 147 of 2019, British American Investments Co (K) Ltd & another v Edwin Harold
Dayan Dande & 3 others
24. BAAM and the 6th respondent also led Civil Appeal No 147 of 2019 seeking that the judgment
and decree of the High Court at Nairobi (Mwita, J) delivered on February 22, 2019 in Petition No
539 of 2016 be set aside and substituted with an order dismissing the appellants' petition with costs
on inter alia the grounds that the Court of Appeal erred by failing to distinguish between the right
to access to information held by a public body vis-a-vis a private person and in considering that a
'positive obligation existed' on the part of both a public and private body to release information and
not appreciating that no credible evidence was tendered to demonstrate that the intended prosecution
of the appellants was as a consequence of any material in the privileged reports or that any exculpatory
material was in the privileged reports.
25. The Court of Appeal in its judgment delivered on March 4, 2022, allowed the appeal with costs
holding that the trial court erred in granting the orders sought. The court framed only one issue for
determination; whether the trial court erred in its determination of the extent and scope of article 35(1)
(b) of the Constitution and whether the petition at the High Court met the threshold set out therein.
26. In that regard, the court observed that a party seeking information from a private entity needs to
show the right he seeks to exercise or protect, the information which is required in order to exercise
or protect the right, and how that information would assist him in exercising or protecting the right.
The Court of Appeal further observed that a party requesting information from a private person must
place before the court a demonstrable and sucient link between the right sought to be exercised or
protected and the information requested. Once this is done, the onus is on the private person from
whom information is requested to show why such information should not be disclosed. It thus held
that the pleadings before the trial court did not meet the standard set for a request for information
held by a private person and there was no demonstrable or sucient connection between the requested
information and the exercise or protection of the rights under articles 28, 32(2), 48 and 50 of the
Constitution. It further observed that the civil suits in which the appellants were parties had been settled
and the claims against them withdrawn by the time the request for information was made. There was
therefore no sucient link between the documents sought and the exercise or protection of rights with
respect to the civil suits.
Proceedings at the Supreme Court

27. Dissatised by the judgments of the Court of Appeal, three appeals were led before the Supreme
Court namely: Petition No 6 (E007) of 2022 dated March 24, 2022 and led on March 31, 2022;
Petition No 4 (E005) of 2022 dated March 9, 2022 and led on March 11, 2022 and Petition No 8
(E010) of 2022 dated April 12, 2022 and was led on April 14, 2022. The appeals therein raised several
grounds and seek various reliefs from this court.
28. At the hearing of the appeal on February 2, 2023, the court consolidated the three appeals designating
Petition No 6 (E007) of 2022 as the lead le. The 4th appellant was also granted leave to withdraw from
the petitions of appeal.
29. The appellants seek the following reliefs in the consolidated appeal:
i. The petitions of appeal be allowed.
ii. The judgments of the High Court in Judicial Review Misc Application No
435 of 2014 and Judicial Review Application No 8 of 2017 be set aside.
iii. The judgment of the High Court in High Court Petition No 539 of 2016 be
reinstated.
iv. Judgments in Civil Appeal No 378 of 2018, Civil Appeal No 246 of 2016, and
Civil Appeal No 147 of 2019 be set aside.
v. A permanent injunction does issue restraining the 1st and 2nd respondents from
arresting, harassing, and in any other manner interfering with the petitioners
with respect to the complaint lodged against them for theft by servant by
BAAM;
vi. An Order to quash the charges against the appellants and the entire criminal
proceedings in Nairobi Chief Magistrates Criminal Case Number 1735 of
2016 Republic v Edwin Harold Dayan Dande, Elizabeth Nailantei Nkukuu,
Patricia Njeri Wanjama, and Shiv Anoop Arora;
vii. A permanent injunction restraining the DPP from charging, harassing, and
prosecuting the Petitioners in Nairobi Chief Magistrates Criminal Case
Number 1735 of 2016 Republic v Edwin Harold Dayan Dande, Elizabeth
Nailantei Nkukuu, Patricia Njeri Wanjama, and Shiv Anoop Arora;
viii. An order of mandamus compelling the respondents to provide the appellants

with:
a. The settlement agreement entered into between

BAAM and Acorn Group Limited in HCCC No
352,353,354,361 and 362 of 2014 which formed the
basis of the court orders given on October 22, 2015 by
Honourable Mbogholi Msagha;
b. The forensic audit performed by KPMG on the books

of BAAM as mentioned in paragraph 5 of Ms Carol
Akinyi Ouko-Misiko’s witness statement sworn on
October 27, 2014 and led in HCCC No 354 of 2014;
and
c. The legal audit performed by Messrs Coulson Harney

of all transactions handled by the appellants as referred
to in paragraphs 17 of Mr Jude Anyiko’s adavit
sworn on October 27, 2016 and led in HCCC No
354 of 2014.
ix. Costs of the suit and the interest.
x. Any other or further relief that this court may deem t to grant.
30. In opposing the appeal, BAAM led three replying adavits sworn by Jude Anyiko on May 4, 2022,
March 18, 2022, and June 8, 2022. It also led two preliminary objections dated March 18, 2022 and
May 11, 2022. The preliminary objections were based on the grounds that there was no issue involving
the interpretation or application of the Constitution both at the High Court and Court of Appeal and
no certication had been granted by either the Court of Appeal or this court pointing to any matter
of general public importance that this court should resolve.
31. The 4th respondent also led a replying adavit sworn by Peter Mailanyi on March 23, 2022 wherein
he averred that the DPP independently reviewed the les as forwarded by the DCI and was satised
that the evidence presented to him was sucient to sustain a prosecution.
32. This court, in a ruling dated May 19, 2022 rendered itself on BAAM’s notice of preliminary objection
dated March 18, 2022 and stated that the matter involved the interpretation of article 157 of the
Constitution and therefore the court has jurisdiction to determine the same. We shall determine
BAAM’s preliminary objection dated May 11, 2022 in this judgment.
C. Parties Submissions
The appellants’ submissions

33. The 1st - 3rd appellants’ submissions are dated August 15, 2022, July 13, 2022, and April 12, 2022. It
was their joint case that this court is clothed with jurisdiction to entertain their appeal under article
163(4)(a) of the Constitution as it involves the interpretation and application of the Constitution and
that they had challenged the constitutional powers of the Inspector General and DCI under article
245(4) of the Constitution before the superior courts below which issue is still live before this court.
34. The appellants also submitted that, article 47 of the Constitution as well as the Fair Administrative
Actions Act, 2015 have widened the scope of judicial review and that courts can now apply the
hard look doctrine and consider the merits of the administration's action or decision forming the
subject of the judicial review proceedings. They argued that despite the Court of Appeal noting the
advancements in judicial review cases, it adopted a contrary view and held that the High Court had
no basis to reconsider the evidence obtained from investigations in clear violation of articles 22, 23(3)
(f), 47, 165(3)(b) and 165(d) of the Constitution. To support this assertion, they cited Judicial Service
Commission & another v Lucy Muthoni Njora [2021] eKLR and Njuguna S Ndung’u v Ethics & Anti-
Corruption Commission (EACC) & 3 others [2018] eKLR.
35. They also faulted the Court of Appeal’s nding that, since no decision to charge had been made by
the time they led the rst judicial review Motion, then the appellants could not get any redress for
the threatened violation of their rights under articles 22, 23, 47, and 165 of the Constitution. Instead,
they submitted that the Court of Appeal abdicated its role as a temple of justice and in eect closed the
doors of the court to the appellants’ contrary to the holding of the Supreme Court in India in Arnab
Rajan Goswami v Union of India, (2020) 14 SCC 12 cited with approval in Mohammed Zubair v State
of Nct of Delhi, Writ Petition (Criminal) No 279 of 2022. They thus asserted that, the respondents
cannot violate the Constitution and still plead independence in their actions.
36. The appellants went on to submit that, the investigations, arrest, and institution of criminal
proceedings against them were an abuse of power and in violation of articles 245 (4) and 157 of the
Constitution. In addition, they argued that there was no factual basis for the prosecution because the
complaint was based on ctitious and non-existent conclusions allegedly made in the KPMG Report
and the Legal Audit by Messrs Coulson Harney, Advocates, aforesaid. Furthermore, they argued that
the disbursements of monies leading to the criminal charges against them, were made in the ordinary
course of duty upon approval and they were singled out for arrest and prosecution yet, they were
not the only signatories with respect to the impugned disbursements. They also submitted that the
disbursements were under the direct control of BAAM jointly with Acorn and that there was no money
stolen by them. It was also their case that there were several checkpoints in so far as the disbursements
were concerned and since the appellants had no stake whatsoever in Acorn, their prosecution was
malicious and discriminatory.
37. They further submitted that the institution of criminal proceedings also amounted to an abuse of the
prosecutorial powers of the Director of Public Prosecution. They cited this court’s decision in Jirongo v
Soy Developers Ltd & 9 others (Petition 38 of 2019) [2021] KESC 32 (KLR) (16 July 2021) (Judgment),
(Jirongo case) to support this assertion. In addition, they urged that the machinery of criminal justice
was being deployed as a tool in the personal dispute between BAAM as an employer and the appellants
as its former employees.
38. It was the appellants' other contention that the Court of Appeal adopted a narrow, articial, rigid,
and pedantic interpretation of the right to access to information held by a private body. They relied
on the Court of Appeal’s decision in Attorney General vs Kituo cha Sheria & 7 others [2017]eKLR to
argue that, courts are commanded to be creative and proactive so that the Bill of Rights may have the
broadest sweep, the deepest reach, and highest claims. They also cited the decision in Mercy Nyawade
v Banking Fraud Investigations Department & 2 others [2017] eKLR where the court held that article
35 of the Constitution must not be constrained by a narrow interpretation.
39. They also posited that the only test to be met under article 35 is for a person to demonstrate that the
information is required for the exercise or protection of a right or fundamental freedom under the
Constitution. They argued in that context that the civil suits and the criminal charges against them
were based on a forensic audit conducted by KPMG and a legal audit by Messrs Coulson Harney,
Advocates, which audits revealed that the appellants had allegedly participated in fraudulent activities.
Therefore, the information sought was necessary and a prerequisite for the realization of the right to
dignity which is the foundation of other rights. They cited Martha Kerubo Moracha v University of
Nairobi [2016] eKLR, Brummer v Minister for Social Development and Others (CCT 25/09) [2009]
ZACC21;2009 to buttress this point.
40. Additionally, they submitted that the information sought was necessary for the exercise of the right to
access to justice under article 48 of the Constitution and that they required the information to enable
them to approach the High Court to quash the criminal investigations and the intended prosecution
which according to them had no factual basis. They cited the decision in Republic vs Director of Public
Prosecutions & 2 others; Evanson Muriuki Kariuki (Interested Party) ex parte James M Kahumbura
[2019]eKLR to support this contention.
41. They further submitted that the information they were seeking was necessary for the protection of
the right to a fair hearing and fair trial. They cited the case of Mohamed Abdi Mahamud vs Ahmed
Abdullahi Mohamad & 3 others [2018] eKLR in that regard where it was held that the right to a fair
hearing is broad and includes the concept of the right to a fair trial and that a litigant should not be
denied the opportunity to present his case eectively before a court. Furthermore, they faulted the
Court of Appeal for failure to address itself to the connection between the protection of the right to
a fair hearing and the information requested. In conclusion, they urged the court to allow the appeal
as prayed.
The 1st, 2nd and 4th respondents’ submissions
42. The 0ce of the DPP led submissions on its behalf and on behalf of the Inspector General and DCI
dated March 25, 2022, June 27, 2022, and July 7, 2022. They submitted that no proper case had been
made before the courts to enable them to interfere or intervene in the exercise of powers of review of
a decision to charge by the DPP. They argued that a court should only interfere with the decision of
the DPP if it is in the opinion that grave violations of the rights of the suspects were occasioned during
the investigation process. They relied on the case of Maina & 4 others v Director of Public Prosecutions
(Constitutional Petition E106 & 160 of 2021) (Consolidated)) [2022] KEHC 15 (KLR) (Constitutional
and Human Rights) (27 January 2022) (Judgment) to support that contention.
43. It was also urged that, the powers of the oce of DPP to prosecute are anchored in article 157 of
the Constitution which provides for its independence in the exercise of its duties, and that article
157(11) enjoins the DPP to have regard to the public interest, the interest of the administration of
justice and the need to prevent abuse of the legal process even though the decision to institute criminal
proceedings is discretionary. Furthermore, they submitted that the Court of Appeal correctly held
that the appellants did not demonstrate that the DPP had acted ultra vires in making the decision to
charge nor was the DPP’s decision-making process demonstrated to be at variance with article 157(10)
of the Constitution. They cited the Jirongo case to support this assertion and emphasized that the
DPP’s decision to institute charges is rarely interfered with unless actuated by dishonesty, bad faith,
or exceptional circumstance as espoused in the case of Regina v Director of Public Prosecutions ex parte
Kebeline and others (1999) 4 All ER 801
44. They also argued that the Judicial Review Court was not the proper forum to adjudicate the appellants'
issues as that would require the court to interrogate the facts and evidence gathered by the Inspector
General and DCI during investigations. They urged in that context that the appellants failed to
demonstrate to the Court of Appeal that the Inspector General and DCI’s investigations were blatantly
illegal and an abuse of their constitutional power to warrant the court’s intervention. To support this
contention, they relied on the decisions in Meixner & another v Attorney General (2005)1 KLR 189
and Suchan Investment Limited v Ministry of National Heritage & Culture & 3 others, (2016) KLR.
45. They submitted, in addition, that the investigation and eventual arrest of the appellants arose from a
complaint lodged by BAAM with respect to their previous relationship as employer and employee and
did not amount to an abuse of power. They further submitted that the appellants failed to demonstrate
that the Inspector General and DCI did not act independently and that they were working at the behest
of BAAM to necessitate this court’s intervention.
46. It was their other submissions that the appellants have not demonstrated that it was unreasonable
or discriminative for the Inspector General and DCI to arrest and investigate them or that the
criminal proceedings were undertaken against them as a result of business rivalry. In addition, the DPP
submitted that the choice of persons who should face prosecution is at its discretion. It further argued
that the appellants have not demonstrated that it was unreasonable for the DPP to prefer charges
against them and that the process was not discriminatory and that the burden of proving violation
or threat of violation is upon the appellants as espoused in Anarita Karimi Njeru v Republic, Misc
Criminal Application No 4 of 1979; [1979] eKLR.
47. In supporting the ndings by the Court of Appeal, the DPP reiterated the point that the Court of
Appeal did not make a pronouncement of guilt and factual holdings as alleged but only made a nding
on whether the appellants ought to have been charged or not. He urged in that regard that, the court
merely discharged its duty as the rst appellate court and that the appellants themselves are inviting
this court to delve into the realm of the trial court by making submissions on the roles they played
and giving reasons as to why they ought not to be charged. It was the DPP’s argument to the contrary
that, consideration of the suciency of the evidence is a duty of the trial court and cited the decision
in Meixner & another v The Attorney General (2005)1 KLR 189 to support that submission.
48. In conclusion, the DPP submitted that the appellants' rights to a fair trial were not infringed and that
this contention to the contrary is speculative since the said right is guaranteed and no evidence was
presented to prove its violation.
The 3rd and 6th respondents’ submissions

49. BAAM and the 6th respondents led submissions dated December 29, 2022, May 9, 2022, and
July 17, 2022. They submitted that the appeal did not concern the interpretation or application of
the Constitution before the superior courts and that the appellants only referred to constitutional
provisions during submissions at the bar and that mere references to constitutional provisions do not
confer the right to appeal under article 163(4)(a) of the Constitution.
50. Regarding the scope of judicial review, they submitted that the Court of Appeal correctly interpreted
the scope of judicial review consistent with article 47 of the Constitution and the Fair Administrative
Actions Act, 2015. They argued that contrary to the law, the appellants had invited the superior courts
as well as this court to usurp the DPP’s power of deciding whether or not the appellants should have
been charged.
51. They further argued that the Court of Appeal did not nd any proof that the investigations, arrest, and
prosecution of the appellants were an abuse of power, vexatious, oppressive, or motivated by ill motive.
Instead, the court found that the arrest and investigation were based on complaints made by BAAM
and correctly appreciated the mandate of the Police to investigate criminal complaints including those
made by BAAM without undue interference. They cited the case of Republic v Commissioner of Police
and Another ex parte Michael Monari & another [2012] eKLR to support this claim.
52. It was also their case that the Court of Appeal correctly interpreted article 35(1)(b) guided by article
259 of the Constitution in a manner that balances the burdens of disclosure of private information
with the right to privacy and that, under article 35(1)(b) of the Constitution, a citizen is entitled to
information held by another person where that information is required for the exercise and protection
of any right or fundamental freedom. Further, the extent of the disclosure of information held by an
entity is provided under section 6(1) of the Access to Information Act, 2016 which states that pursuant to
article 24 of the Constitution the right to access to information shall be limited in respect to information
whose disclosure is likely to, amongst other considerations, involve unwarranted invasion of privacy
and substantially prejudice the commercial interests of an entity.
53. They contended that the appellants did not at the trial court or at the Court of Appeal demonstrate
what right they wished to exercise or protect and how that information would assist them in exercising
or protecting that right, and that bare references to constitutional rights did not automatically
guarantee the appellants the right to access information. Furthermore, they submitted that the
appellants did not meet the threshold to access privately held information under article 35(1)(b) of
the Constitution. They argued that a citizen must not only show that the information is held by the
person from whom it is claimed but full three ingredients; to state what right he seeks to protect;
what information is required for that purpose, and how the information sought will assist him in
enforcing that right or freedom. To support this argument, they relied on the decisions in Benson
Wachira Muthiga vs Nairobi City County Public Service Board & another [2015] eKLR, Nairobi Law
Monthly Company Ltd vs Kenya Electricity Generating Company & 2 Others [2013] eKLR and Cape
Metropolitan Council v Metro Inspection Services Western Cape CC and others (10/99)(2001)ZASCA.
54. Furthermore, they submitted that whereas the appellants had claimed that they were seeking the
information for the protection of their right to dignity and access to justice, their case is predominantly
hinged on the protection of a right to a fair trial as they had stated that the information was required
to help them determine the basis of the respondents’ complaint on misappropriation of funds and
prepare their defence in Criminal Case No 1735 of 2016 yet at the time of ling the petition at the
High Court, the appellants had not taken plea as the DPP had not made a determination on whether
or not to prosecute them. Therefore their claim for information is unwarranted and is neither factually
nor legally sustainable.
55. In addition to the above, BAAM and 6th respondent submitted that the appellants obtained stay orders
from the High Court upon ling Judicial Review proceedings which proceedings are now the subject
of Supreme Court Petition No 4 and 6 of 2022, and they were, for that reason, not arraigned in court,
charged, or directed to take plea. Since the appellants had therefore not subjected themselves to a trial,
they could not demonstrate which right they intended to protect and how the requested information
would assist in protecting the said right. To support this assertion, they relied on the decision of this
court in Hussein Khalid & 16 Others vs Attorney General & 2 others [2019] eKLR to state that the
right to a fair trial under article 50(2)(j) of the Constitution accrues to an accused person and not an
arrested person.
56. On disclosure of information held by private entities, they submitted that being private entities, they
had no obligation to release the requested information given the prejudice they will suer, and the
Court of Appeal rightly held that there is no general duty on private persons to give a requester access to
information. They added that to qualify for access to information from a private person, a person must
establish and demonstrate a sucient connection between the right sought to be exercised or protected
and the information requested. It is only once this is done that the burden shifts to the private person
to show why such information should not be disclosed.
57. Lastly, they submitted that despite the appellants citing several rights that they sought to protect using
the information, they failed to demonstrate any nexus between the information sought and the rights to
be protected. They thus urged that they had discharged their burden by proving that the information
sought was privileged and whose disclosure would be injurious to the respondents’ commercial
interests and customers. The information was therefore protected from arbitrary disclosure where no
foundation had been laid and prayed that the appeal be dismissed with costs.
D. Analysis and determination

58. Having considered the respective parties’ pleadings and submissions in the appeal before us, the
following issues emerge for determination;
i. Whether the appellants have properly invoked this court’s jurisdiction under
article 163(4)(a) of the Constitution.
ii. Whether the appeal, or any part of it, is moot, leaving no live controversy
requiring adjudication.
iii. Whether the scope of judicial review has evolved to include merit review of an
administrative decision or other action complained of.
iv. Whether the decision to investigate, arrest and prosecute the appellants
constituted an abuse of power by the 1st and 2nd respondents.
v. Whether the appellants are entitled to the right to access to information under
article 35(1)(b) of the Constitution.
vi. What relief is available to parties?
Whether the appellants have properly invoked this court’s jurisdiction under article 163(4)(a) of the
Constitution.
59. It was the appellants' case that this court has jurisdiction to entertain the appeal under article 163(4)(a)
of the Constitution as it involves the interpretation and application of the Constitution. Particularly,
the appellants contended that they challenged the constitutional powers of the Inspector General and
DCI under articles 157(6) and 245(4) of the Constitution and therefore the matter before the superior
courts involved the interpretation and application of the Constitution.
60. BAAM on its part emphasized that, although the appeal is brought under article 163(4)(a) of the
Constitution, no issues requiring constitutional interpretation and application were raised in the High
Court and the Court of Appeal. They also argued that since the appeal does not meet the threshold
for admission under article 163(4)(a) of the Constitution then the only other option available to the
appellants was to invoke this court’s jurisdiction under article 163(4)(b) of the Constitution. It was
their case in that context that, having failed to secure certication, there is no basis for the court to
nd that the appeal raises cardinal issues of law or jurisprudential moment and should strike out the
appeal as consolidated.
61. This court has time and again determined the question of whether a litigant has properly invoked
its jurisdiction under article 163(4)(a) of the Constitution. We set the guiding principles in the case
of Hassan Ali Joho & Another v Suleiman Said Shahbal & 2 Others, SC Petition No 10 of 2013;
[2014]eKLR and Erad Suppliers & General Contractors Ltd v National Cereals & Produce Board SC
Petition No 5 of 2012; [2012]eKLR where we stated that an appeal lies to this Court under article
163(4)(a) if the issues placed before it revolved around the interpretation and application of the
Constitution and that the interpretation or application of the Constitution had formed the basis for
the determinations at the superior courts below this court and the same issue had therefore progressed
through the normal appellate mechanism to reach this court.
62. In addition in Lawrence Nduttu & 6000 others v Kenya Breweries Ltd & another, SC Petition No 3 of
2012 [2012] eKLR we stated:
'(28) The appeal must originate from a court of appeal case where issues of contestation
revolved around the interpretation or application of the Constitution. In other words, an
appellant must be challenging the interpretation or application of the Constitution which
the Court of Appeal used to dispose of the matter in that forum. Such a party must be
faulting the Court of Appeal on the basis of such interpretation. Where the case to be
appealed from had nothing or little to do with the interpretation or application of the
Constitution, it cannot support a further appeal to the Supreme Court under the provisions
of article 163(4)(a).'
63. A perusal of the record reveals that the issues before the superior courts revolved around the
interpretation and application of the Constitution. In particular, the superior courts rendered
themselves on the role of the DPP under article 157(4)(10) and (11) of the Constitution. The superior
courts also addressed the role of the Inspector General as provided for under article 245(4) of the
Constitution. In this regard, the High Court in Judicial Review Application 8 of 2017 Republic Director
of Public Prosecutions & 2 others ex parte Edwin Harold Dayan Dande & 3 others, observed as follows:
' 39. A reading of article 157 of the Constitution leaves no doubt that the DPP
is required to not only act independently, but to remain ercely so. It is
also important to mention that article 245(4)(a) of the Constitution provides
that: 'no person may give a direction to the Inspector General with respect
to the investigation of any oence or oences.' Just like the constitutionally
guaranteed independence of the DPP, this provision is aimed at ensuring that
investigations are undertaken independently.'
64. Similarly, the Court of Appeal in Civil Appeal No 378 of 2018 Edwin Harold Dayan Dande & 3 others
v Director of Public Prosecutions & 2 others stated as follows:
' The gist of this appeal really revolves around the exercise of powers bestowed on the 1st
respondent by the Constitution and whether the trial court failed in its duty to protect the
appellants from skewed and malicious prosecution. The question is simply this; did the 1st
respondent act independently in instituting the criminal case against the appellants or was
it orchestrated by ulterior motives?'
65. From the above, we are satised that the basis of the superior courts’ decisions revolved around the
interpretation and application of the Constitution, and therefore, the appellants have properly invoked
the jurisdiction of this court under article 163(4)(a) of the Constitution.
Whether the appeal or any part of it is moot.

66. Albeit not raised by the parties, it is imperative for this court to pronounce itself on the issue of
mootness of some aspects of this appeal. The doctrine of mootness requires that controversy must exist
throughout judicial proceedings including at the appellate level. An appeal or an issue is moot when
a decision will not have the eect of resolving a live controversy aecting or potentially aecting the
rights of parties. Such a live controversy must be present not only when the action or proceeding is
commenced but also when the court is called upon to reach a decision. The doctrine of mootness is
therefore based on the notion that judicial resources ought to be utilized eciently and should not be
dedicated to an abstract proposition of law and that courts should avoid deciding on matters that are
abstract, academic, or hypothetical.
67. This court in Institute for Social Accountability & another v National Assembly & 3 others (Petition 1
of 2018) [2022] KESC 39 (KLR) (8 August 2022) (Judgment) in addressing mootness stated that:
' A matter is moot when it has no practical signicance or when the decision will not have the
eect of resolving the controversy aecting the rights of the parties before it. If a decision
of a court will have no such practical eect on the rights of the parties, a court will decline
to decide on the case. Accordingly, there has to be a live controversy between the parties at
all stages of the case when a court is rendering its decision. If after the commencement of
the proceedings, events occur changing the facts or the law which deprive the parties of the
pursued outcome or relief then, the matter becomes moot.'
68. Similarly, Lenaola SCJ in the case of Attorney General & 3 others v David Ndii & 73 others: Prof
Rosalind Dixon & 7 others (amicus curiae) (SC Petition 12, 11 & 13 of 2021 (Consolidated) [2022]
KESCA 8 (KLR) (Constitutional and Human Rights) (31 March 2022) (Judgment) (with dissent),
quoted with approval the decision of the High Court of South Africa in Afriform NPC and others v
Eskom Holdings SOC Limited & others 3 All SA 663 (GP) where it stated:
' The mootness barrier therefore usually arises from events arising or occurring after an
adverse decision has been taken or a lawsuit has got underway, usually involving a change in
the facts or the law, which allegedly deprive the litigant of the necessary stake in the pursued
outcome or relief. The doctrine requires that an actual controversy must be extant at all
stages of review and not merely at the time the impugned decision is taken or the review
application is made.'
69. The instances in which a dispute is rendered moot were also discussed by the Supreme Court of Canada
in Borowski v Canada (Attorney General) [1989] 1 SCR 342, where it stated that a repeal of a by-
law being challenged; an undertaking to pay damages regardless of the outcome of an appeal; non-
applicability of a statute to the party challenging the legislation; or the end of a strike for which a
prohibitory injunction was obtained were some of the circumstances that render an appeal moot.
The court further opined that determining whether an appeal is moot or not requires a two-step
analysis. A court is rst required to determine whether the requisite tangible and concrete dispute
has disappeared rendering the issues academic. If so, it is then necessary to decide if the court should
exercise its discretion to hear the case.
70. Noting the above expressions of the law, with which we agree, is there a tangible and concrete dispute
concerning the prayer by the appellants seeking to restrain the Inspector General, DCI and DPP
from arresting and charging them? A perusal of the record reveals that at the time of ling Judicial
Miscellaneous Application No 435 of 2014, Republic v & 2 other ex-parte Edwin Harold Dayan
Dande & 4 others on November 17, 2014, there was an imminent threat of arrest and charging of
the appellants, therefore, it was necessary on their part to seek an injunction restraining the Inspector
General, DCI and DPP from arresting and charging them. However, on November 4, 2016 when
the DPP instituted criminal proceedings against the appellants, the issue of restraining the Inspector
General, DCI and DPP from arresting and charging the appellants became moot as this was no longer
a live controversy.
71. It is our considered view that the above explains why at the time the appellants were ling Judicial
Review Application No 8 of 2017, Republic v Director of Public Prosecutions & 2 others ex parte Edwin
Harold Dayan Dande & 3 others they did not seek an order restraining the Inspector General, DCI
and DPP from arresting and charging but they sought orders of certiorari to quash the decision to
institute criminal proceedings against them and a prohibition against the hearing and determination
of Criminal Case No 1735 of 2016.
72. Thus, it is our nding that there exists no live controversy on the question of restraining the Inspector
General, DCI and DPP from arresting and charging the appellants as the adverse decision to prosecute
the appellants has already taken place and on the existing facts, there is no imminent threat to arrest
or charge the appellant again.
Whether the scope of judicial review has evolved to include determinations of merit review of an
administrative decision.
73. The appellants faulted the Court of Appeal for holding that the High Court had no basis to reconsider
the evidence obtained from investigations in the Judicial review proceedings yet it noted that there have
been advancements in judicial review allowing courts to do merit review of decisions in administrative
or other actions.
74. The Black’s Law Dictionary, 9th Edition denes judicial review as:
' A court’s power to review the actions of other branches or levels of government; esp., the
court’s power to invalidate legislative and executive actions as being unconstitutional. 2. The
constitutional doctrine providing for this power. 3. A court’s review of a lower courts or an
administrative body’s factual or legal ndings'.
75. Mark Ryan, in his book, ‘Unlocking Constitutional and Administrative Law’, (3rd ed Routledge/Taylor
& Francis Group, 2014) on page 506 denes Judicial Review as:
' The constitutionally justied as a legal control on the misuse of public law powers, including
both statutory and common law prerogative powers.'
76. We note that judicial review was introduced to Kenya from England in 1956 through sections 8 and 9
of the Law Reform Act, cap 26. The jurisdiction to hear and determine judicial review was then vested
in the High Court of Kenya. Under this system, the High Court could issue orders of mandamus,
prohibition, and certiorari. The grounds for the issuance of such orders were borrowed from common
law.
77. Prior to the promulgation of the Constitution in 2010 there were two legal foundations for the exercise
of the judicial review jurisdiction by the Kenyan courts found in sections 8 and 9 of the Law Reform
Act cap 26, which constituted the substantive basis for judicial review of administrative actions on the
one hand, and, order 53 of the Civil Procedure Rules which was the procedural basis of judicial review
of administrative actions, on the other hand.
78. However, the entrenchment of judicial review under the Constitution of Kenya 2010 elevated it
to a substantive and justiciable right under the Constitution. Accordingly, judicial review is no
longer a strict administrative law remedy but also a constitutional fundamental right enshrined in the
Constitution. Thus, article 47 provides that 'every person has a right to an administrative action that is
expeditious, ecient, lawful, reasonable and procedurally fair.
79. Furthermore, section 7 of the Fair Administrative Actions Act provides that:
1. Any person who is aggrieved by an administrative action or decision may apply

for review of the administrative action or decision to–
a. A court in accordance with section 8; or
b. A tribunal in exercise of its jurisdiction conferred in

that regard under any written law.
80. Fundamentally also, article 23(3) of the Constitution provides that:
3. In any proceedings brought under article 2, a court may grant appropriate

relief, including-
a. A declaration of rights;
b. An injunction;
c. A conservatory order;
d. A declaration of invalidity of any law that denies,
violates, infringes, or threatens a right or fundamental
freedom in the Bill of Rights and is not justied under
article 24;
e. An order for compensation; and
f. An order of judicial review.
81. The entrenchment of judicial review in the Constitution has led to the emergence of divergent views
on the scope of judicial review. The rst group postulates that judicial review is concerned with the
process a statutory body employs to reach its decision and not the merits of the decision itself while the
second group opine that under the current constitutional dispensation, courts could delve into both
procedural and merit review in resolving disputes.
82. In Communications Commission of Kenya & 5 others v Royal Media Services Limited & 5 others SC
Petition No 14 Consolidated with 14A, 14B, & 14C of 2014 [2014] eKLR this court in resolving the
controversy stated as follows:
'[355] However, notwithstanding our ndings based on the common law principles of
estoppel and res- judicata, we remain keenly aware that the Constitution of 2010 has elevated
the process of judicial review to a pedestal that transcends the technicalities of common
law. By clothing their grievance as a constitutional question, the 1st, 2nd and 3rd respondents
were seeking the intervention of the High Court in the rm belief that, their fundamental
right had been violated by a state organ. Indeed, this is what must have informed the Court
of Appeal’s view to the eect that the appellants (respondents herein) were entitled to
approach the court and have their grievance resolved on the basis of articles 22 and 23 of
the Constitution.
83. Also, this Court in SGS Kenya Limited v Energy Regulatory Commission & 2 others SC Petition No 2
of 2019 [2020] eKLR observed as follows:
' [40] The petitioner approached the High Court by way of the prescribed procedures under
Judicial Review, which revolve around the paths followed in decision-making. Such a course,
as the appellate court properly held, is not concerned with the merits of the decision in
question. The law in this regard, which falls under the umbrella of basic 'Administrative
Law', is clear enough, and it is unnecessary to belabour the point.'
We have, however, observed that the appellate court was right in its nding that the High
Court should not have gone to the merits of the Review Board decision as if it was an appeal,
nor granted the order of mandamus, since the 1st respondent did not owe any delimited
statutory duty to the petitioner.'
84. More recently in Praxedes Saisi & 7 others v Director of Public Prosecutions & 2 others) (Petition 39 &
40 of 2019 (Consolidated)) [2023] KESC 6 (KLR) (Civ) (27 January 2023) (Judgment) Praxedes Saisi
case this court stated that:
'It is our considered opinion that the framers of the Constitution when codifying judicial
review to a constitutional right, the intention was to elevate the right to fair administrative
action as a constitutional imperative not just for state bodies, but for any person, body or
authority.'
85. It is clear from the above decisions that when a party approaches a court under the provisions of the
Constitution then the court ought to carry out a merit review of the case. However, if a party les a
suit under the provisions of order 53 of the Civil Procedure Rules and does not claim any violation
of rights or even violation of the Constitution, then the court can only limit itself to the process and
manner in which the decision complained of was reached or action taken and following our decision
in SGS Kenya Ltd and not the merits of the decision per se.
86. Turning back to the instant case, we note that the appellants invoked the judicial review jurisdiction
of the High Court alleging that their rights to among others, fair administrative action under article
47 were violated, and applied for judicial review orders under article 23 of the Constitution. In that
context, the Court of Appeal in Civil Appeal No 246 of 2016 stated as follows:
' 28. While this may have been relevant and pertinent information, the question
that arises is whether the judicial review court was the proper forum to
determine and direct the information and evidence that was gathered during
the investigations, and the manner of its collection by the 1st and 2nd
respondents. In our view, it was not, in light of the standards of review which
limit a judicial review court’s intervention in merit review. It was emphasized
by this court in Suchan Investment Limited vs Ministry of National Heritage &
Culture & 3 others, (2016) KLR that while article 47 of the Constitution as read
with the grounds for review provided by section 7 of the Fair Administrative
Action Act reveals an implicit shift of judicial review to include aspects of
merit review of administrative action, the reviewing court has no mandate to
substitute its own decision for that of the administrator.'
87. With utmost respect to the learned Judges of the Court of Appeal, we disagree with the above reasoning
and nd that the appellants had clothed their grievances as constitutional questions believing that
their fundamental rights had been violated. Therefore, this required the superior courts to conduct a
merit review of the questions before them and dismissal of their plea as one requiring no merit review
was misguided. A court cannot issue judicial review orders under the Constitution if it limits itself to
the traditional review known to common law and codied in order 53 of the Civil Procedure Rules.
The dual approach to judicial review does exist as we have stated above but that approach must be
determined based on the pleadings and procedure adopted by parties at the inception of proceedings.
Our decision in the Jirongo and Praxedes Saisi cases speaks succinctly to this issue. That is also why, the
question below is pertinent to the present appeal.
Whether the decision to investigate, arrest and prosecute the appellants constituted an abuse of
power by the 1st, 2nd, and 4th respondents.
88. The crux of the appellants' claim is that their investigations, arrest, and prosecution by the Inspector
General, DCI, and the DPP amounted to an abuse of power bestowed upon them by the Constitution.
First, they contended that the investigations leading to their arrest as well as the arrest itself were
an abuse of the investigative powers of the DCI and the Inspector General under article 245 of the
Constitution. Second, they argued that the institution of criminal proceedings against them amounted
to an abuse of prosecutorial powers by the DPP. We will proceed to deal with the two issues separately.
Abuse of investigative and arrest powers by the 1st and 2nd respondents.
89. The oce of the Inspector General of the National Police is established under article 245 (1) of the
Constitution. The power to investigate crimes is vested in the Inspector General by dint of article 245
(4) of the Constitution which provides that:
' (4) The Cabinet Secretary responsible for police services may lawfully give a
direction to the Inspector-General with respect to any matter of policy for the
National Police Service, but no person may give a direction to the Inspector-
General with respect to-
a. The investigation of any particular oence or oences;
b. The enforcement of the law against any particular

person or persons; or
c. The employment, assignment, promotion,

suspension, or dismissal of any member of the
National Police Service.” [Emphasis added]
90. Also, article 243(1) of the Constitution establishes the National Police Service, and the National Police
Service Act gives full eect to this article. Thus, section 28 of the National Police Service Act, No 11 of
2011 provides that
‘There is established the Directorate of Criminal Investigations which shall be under the
direction, command, and control of the Inspector-General.’
91. A review of the constitutional and statutory provisions herein shows without any doubt that the
Inspector General and the Director, DCI have the mandate to perform multi-faceted functions as
provided under articles 244 and 245 of the Constitution. Accordingly, article 244 provides for the
objects and functions of the National Police Services and article 244(c) in particular requires the
National Police Services to comply with constitutional standards of human rights and fundamental
freedoms in the discharge of its mandate. This is important because human rights and fundamental
freedoms and the rule of law are founding values in our Constitution.
92. A court should only interfere with the powers granted to the Inspector General and the DCI under
articles 244 and 245 of the Constitution and under the provisions of the National Police Service Act if
the constitutional and statutory provisions are not adhered to or if the actions are illegal and unlawful.
The questions that beg answers in the present appeal are whether the Inspector General and the DCI
acted within their constitutional mandate and whether their actions amounted to an abuse of oce.
93. The Court of Appeal had this to say in that regard:
' The 1st and 2nd respondent have in this respect demonstrated and it is not disputed that
they acted pursuant to a complaint received from the 3rd respondent, and they have detailed
the evidence they gathered in this respect. The basis of the complaint arose from the
previous relationship between the appellants and 3rd respondent of employee/employer
which is not disputed, and from transactions that took place during the period of such
employment. The appellants did not provide any evidence of the 3rd respondent’s inuence
or control to support their claim that the 1st and 2nd respondents acted under the aegis of
the 3rd respondent, over and above the 3rd respondent’s action of making a complaint as an
aggrieved person. We are therefore constrained to nd that the arrest and investigations of
the appellants were not proved to be an abuse of power, vexatious, oppressive or motivated
by ill motive in the circumstances.'
94. The appellants' claim of abuse of power by the Inspector General and DCI is based on the allegation
that there was no factual basis for the arrest as the same was solely based on a complaint by BAAM
and that there was no independent review on the part of the two oces aforesaid. The appellants
also alleged that the complaint was based on ctitious and non-existent conclusions made in a KPMG
Report and Legal Audit by Messrs Coulson Harney, Advocates and that the disbursements of monies
to third parties were made in the ordinary course of duty after approval by relevant oces within
BAAM. That therefore they are innocent of the charges against them and the same should be
terminated by order of this court.
95. A perusal of the record conrms that even though the appellants alleged abuse of power by the
Inspector General and DCI, no evidence was brought forth to prove that they actually acted beyond
their constitutional mandate or that their actions amounted to an abuse of oce. The claim that they
acted at the behest of BAAM was merely speculative and the appellants failed to discharge the burden
of proving that allegation. In fact, it is instructive that in the appeal before us, one of the prayers
is release of the report and audit to them which they also claim to be evidence that the Inspector
General and DCI acted on instructions of BAAM. If they do not have the report and audit, how can
they also claim that the two documents are the source of their troubles? Without saying more, we are
inclined to agree with the decision of the Court of Appeal that the appellants did not prove that the
Inspector General and DCI abused their investigative or arrest powers as conferred by the Constitution
and statute.
Abuse of prosecutorial powers by the DPP

96. The oce of Director of Public Prosecution is established under article 157 of the Constitution.
The functions of the Director of Public Prosecution are provided for under article 157 (6) of the
Constitution which states that:
6. The Director of Public Prosecutions shall exercise State powers of prosecution

and may—
a. Institute and undertake criminal proceedings against

any person before any court (other than a court
martial) in respect of any oence alleged to have been
committed;
b. Take over and continue any criminal proceedings

commenced in any court (other than a court martial)
that have been instituted or undertaken by another
person or authority, with the permission of the person
or authority; and
c. Subject to clause (7) and (8), discontinue at any stage

before judgment is delivered any criminal proceedings
instituted by the Director of Public Prosecutions or
taken over by the Director of Public Prosecutions
under paragraph (b).
97. The Constitution, as can be seen above, provides an inbuilt limitation on the powers of the DPP under
article 157(11) of the Constitution which provides that; ‘In exercising the powers conferred by this
article, the Director of Public Prosecutions shall have regard to the public interest, the interests of the
administration of justice and the need to prevent and avoid abuse of the legal process.’
98. Furthermore, article 157(10) of the Constitution anticipates the independence of the oce of DPP
in the performance of its constitutional obligation, providing that in the exercise of its powers or
functions, it shall not be under the direction or control of any person. This is important as it protects
the integrity of a criminal process.
99. This court, in the Jirongo case, expounding on the above provision stated as follows:
' 82. Although the DPP is thus not bound by any directions, control or
recommendations made by any institution or body, being an independent
public oence, where it is shown that the expectations of article 157(11) have
not been met, then the High Court under article 165(3)(d)(ii) can properly
interrogate any question arising therefrom and make appropriate orders.'
100. Furthermore, in the same case, we were persuaded by the reasoning of the Supreme Court of India
in RP Kapur v State of Punjab AIR 1960 SC 866 which laid down the following guidelines to be
considered by courts when reviewing prosecutorial powers as follows:
i. Where institution/continuance of criminal proceedings against an accused

may amount to the abuse of the process of the court or that the quashing of
the impugned proceedings would secure the ends of justice; or
ii. Where it manifestly appears that there is a legal bar against the institution or
continuance of the said proceeding, e.g. want of sanction; or
iii. Where the allegations in the First Information Report or the complaint taken
at their face value and accepted in their entirety, do not constitute the oence
alleged; or
iv. Where the allegations constitute an oence alleged but there is either no legal
evidence adduced or evidence adduced clearly or manifestly fails to prove the
charge.
101. Noting the above guidelines, which we also adopt, did the appellants prove that the expectations of
article 157(11) of the Constitution were not met? It was the appellants' case in that context that their
prosecution was instituted without any factual basis and that a prosecution should not be commenced
or continued unless there is admissible, substantial, and reliable evidence that a criminal oence known
to law has been committed by the accused persons. The appellants also alleged that the complaint was
based on ctitious and non-existent conclusions made by a KPMG Report and Legal Audit by Messrs
Coulson Harney, Advocates and that the disbursements were made in the ordinary course of duty
after approval. The appellants also claimed that, when they resigned from BAAM, the latter instituted
several civil suits being HCCC Nos 352, 353, 354, 361, and 362 of 2014 which were amicably settled
to their exclusion.
102. We have no hesitation in holding that the record reveals that the appellants did not provide any evidence
to prove that the oce of DPP did not meet the expectations required of it under article 157(11) of the
Constitution or that the action to prosecute them amounted to abuse of the process of the court. It is
also clear to us that, at the time of instituting the criminal proceedings, there was no legal bar preventing
them from prosecuting the appellants. The charges the accused are facing constitute oences under
the laws of Kenya and therefore, it is proper that they be subjected to the due process of the law. Their
innocence is intact and there is no apparent risk that they will not face a fair trial where the duty lies
on the DPP to prove their culpability.
103. The appellants also claimed that the civil suits aforesaid were settled to their exclusion meaning that
they were not parties to the suits. If so, what is the prejudice to them? And if the settlement is relevant
to their innocence, what better forum is there than the trial court to raise that issue? Furthermore,
section 193A of the Criminal Procedure Code provides as follows:
'193A. Concurrent criminal and civil proceedings Notwithstanding the provisions of any
other written law, the fact that any matter in issue in any criminal proceedings is also directly
or substantially in issue in any pending civil proceedings shall not be a ground for any stay,
prohibition, or delay of the criminal proceedings.'
104. The conclusion we draw from the above provision is that both civil and criminal jurisdictions can run
parallel to each other and that neither can stand in the way of the other unless either of them is being
employed to perpetuate ulterior motives or generally to abuse of the process of the court in whatever
manner.
105. Despite our conclusion above, we are alive to the fact that in the Jirongo case we held as follows:
' We respectfully agree and adopt this position in this case but must add that where it is
obvious to a court, as it is to us and was to the learned Judge of the High Court, that a
prosecution is being mounted to aid proof of matters before a civil court or where the hand
of a suspect is being forced by the sword of criminal proceedings to compromise pending
civil proceedings, then section 193A of the Criminal Procedure Code cannot be invoked
to aid that unlawful course of action. Criminal proceedings, whether accompanied by civil
proceedings or not, cannot and should never be used in the manner that the 2nd and 3rd
respondents have done. It is indeed advisable for parties to pursue civil proceedings initially
and with rm ndings by the civil court on any alleged fraud, proceed to institute criminal
proceedings to bring any culprit to book.'
106. We note that the circumstances in the Jirongo case are dierent from the current case. In Jirongo, it
was proved to our satisfaction that the criminal case was instituted to force the accused person’s hand
to compromise the civil case between him and the complainant. Such unlawful action should not and
could not be tolerated. However, in the present case, we reiterate our earlier nding that the appellants
did not prove that the same was perpetuated for ulterior motives or amounted to an abuse of the court
process or oce.
Whether the appellants were entitled to the right to access to information as stipulated under article
35(1)(b) of the Constitution.
107. The appellants faulted the Court of Appeal for allegedly adopting a narrow, articial, and rigid
interpretation of the right to access to information held by a private body. It was their case that the only
test to satisfy in seeking to enforce the right to access to information, is for a person to demonstrate
that the information is required for the exercise or protection of a fundamental freedom under the
Constitution. In their case, they argued that they needed the information to exercise their right to access
to justice under article 48 of the Constitution to enable them approach the High Court to quash the
criminal investigation and the intended prosecution which according to them had no factual basis.
They also argued that the information was necessary for the protection of their rights to human dignity,
fair hearing and fair trial.
108. The right to access to information is a fundamental right upon which other rights guaranteed in the
Bill of Rights can be realized. This right encompasses the right to seek and receive information and is
guaranteed to every citizen.
109. Traditionally, the right to access to information has been utilized to render public authorities
accountable and to promote transparency in the public sector. However, there has been a paradigm
shift in substantial measures from the demand for information from public bodies to private bodies
and this is an important guard against abuses, mismanagement, and corruption. Therefore, the
codication of the right to information from private bodies in the Constitution of Kenya 2010 is one
of the major milestones in the protection of the right to access to information.
110. Accordingly, article 35 of the Constitution provides for the right to access to information in the
following terms:
' 35.
(1) Every citizen has the right of access to-
a. Information held by the state; and
b. Information held by another person and

required for the exercise or protection of
any right or fundamental freedom.
(2). Every person has the right to the correction or deletion of untrue
or misleading information that aects the person.
(3). The state shall publish and publicize any important information
aecting the nation.'
111. Similarly, section 4 of the Access to Information Act, No 31 of 2016 which was enacted to give eect
to the rights under article 35 of the Constitution provides for the right of access to information held
by the State and information held by another person and is required for the exercise or protection of
any right or fundamental freedom.
112. The right to access to information is also contained in several international conventions and treaties
ratied by Kenya. Article 19(2) of the International Covenant on Civil and Political Rights (ICCPR)
for example makes the right to information imperative when it states that
'Everyone shall have the right to freedom of expression; this right shall include freedom to
seek, receive and impart information and ideas of all kinds, regard less of frontiers, either
orally, in writing or in print, in the form of art, or through any other media of his choice.'
113. The right to access to information is also stipulated under article 9(1) of the African Charter on Human
and Peoples Rights which states that
‘every individual has the right to receive information.'
114. The Access to Information Act proceeds to dene ‘public body’ as 'any public oce, as dened in article
260 of the Constitution; or (b) any entity performing a function within a commission, oce, agency
or other body established under the Constitution.
115. It also denes ‘private body’ as a body which:
a. Receives public resources and benets, utilizes public funds, engages in public
functions, provides public services, has exclusive contracts to exploit natural
resources (with regard to said funds, functions, services, or resources); or
b. Is in possession of information which is of signicant public interest due to its

relation to the protection of human rights, the environment, or public health
and safety, or to exposure of corruption or illegal actions or where the release
of the information may assist in exercising or protecting any right'.
116. In the instant case, we are concerned about the information held by a private body-BAAM-and which
the appellants seek allegedly for the protection of rights enshrined under the Constitution. In that
context, we must note that under article 35(1)(b) of the Constitution, the right to access to information
is not unlimited because a requester must, as a prerequisite, establish that he or she wishes to exercise
or protect a right and that access to the record is required in order to exercise or protect that right.
117. This was the position taken by the court in Rev Timothy Njoya v Attorney General & another [2014]
eKLR where the learned judge stated as follows:
' While it is crystal clear to me that one would enforce the provisions of article 35(1] (b]
where such information is required for the exercise or protection of a fundamental right and
freedom, in the present Petition, the Petitioner has not stated what fundamental right or
freedom he intends to protect or exercise were he to be given the information he is seeking.'
118. Further, in M&G Media Ltd and athers v 2010 FIFA World Cup Organising Committee South Africa
Ltd and another 2011 (5) SA 163 (GSJ) the South Gauteng High Court observed as follows:
' (145) Following the dualistic scheme in s 32(1)(a) and (b) of the Constitution, PAIA
provides that if access is sought to a record held by a public body, access must
be provided as a matter of right, unless a valid ground of refusal is advanced.
(146) By contrast, if access is sought to a record held by a private body, the requester
must establish that he or she requires access to the record in order to exercise
or protect a right. Once this has been shown, the requester has a right of access
to the records, which may be defeated by a valid ground of refusal.'
119. Section 32 of the Constitution of South Africa is in pari materia with article 35 of our Constitution and
we are also persuaded by the decision Cape Metropolitan Council v Metro Inspection Services Western
Cape and others (2001) ZASCA 56 the Court stated as follows:
' Information can only be required for the exercise or protection of a right if it will be of
assistance in the exercise or protection of the right. It follows that, in order to make out a
case for access to information.
An applicant has to state what the right is that he wishes to exercise or protect, what the information
is which is required, and how that information would assist him in exercising or protecting that right.
120. In summary, a requester seeking to enforce his right under article 35(1)(b) needs to demonstrate:
a. The right that seeks to be protected; and
b. That access to the information is required to exercise or protect that right.
121. In that context, the appellants' arguments were that the information sought was necessary for the
exercise of the right to access to justice under article 48 of the Constitution and that they had sought
the information to enable them approach the High Court to quash the criminal investigation and
the intended prosecution which according to them had no factual basis. They also submitted that the
information was necessary for the protection of the right to a fair hearing and fair trial under article
50 of the Constitution. Without belabouring the point, we are satised that the appellants properly
identied the rights that they sought to protect. The next and more fundamental question for us
to determine is whether the information they were seeking was required to exercise or protect the
identied rights.
122. The Court of Appeal in the instant matter observed that a party requesting information from a private
person must place before the court a demonstrable and sucient link between the right sought to be
exercised or protected and the information requested. Once this is done, the onus is on the private
person from whom information is requested to show why such information should not be disclosed.
Having examined the pleadings and submissions, the appellate court held that the pleadings before the
trial court did not meet the standard set for a request for information held by a private person and there
was no demonstrable or sucient connection between the requested information and the exercise or
protection of the rights under articles 28, 32(2), 48 and 50 of the Constitution.
123. On our part, we are inclined to agree with the Court of Appeal that the appellants did not establish
a demonstrable link between the rights they intended to exercise or protected and the information
requested. We have reached that conclusion because rstly, the right to access to information is not an
absolute right. Thus, section 6 of the Access to Information Act provides that:
' (1) Pursuant to article 24 of the Constitution, the right of access to information
under article 35 of the Constitution shall be limited in respect of information
whose disclosure is likely to:
a. Undermine the national security of Kenya;
b. Impede the due process of law;
c. Endanger the safety, health, or life of any person;
d. Involve the unwarranted invasion of the privacy of

an individual, other than the applicant or the person
on whose behalf an application has, with proper
authority, been made;
e. Substantially prejudice the commercial interests,

including intellectual property rights, of that entity or
third party from whom information was obtained;
f. Cause substantial harm to the ability of the

Government to manage the economy of Kenya;
g. Signicantly undermine a public or private entity's

ability to give adequate and judicious consideration
to a matter concerning which no nal decision has
been taken and which remains the subject of active
consideration;
h. Damage a public entity's position in any actual or

contemplated legal proceedings; or
i. Infringe professional condentiality as recognized in

law or by the rules of a registered association of a
profession.'
124. Secondly, looking at the submissions by the appellants, while on one hand they have identied the
information required and the sources thereof, they have gone ahead to reach the incredible conclusion
that the said information contains information that is adverse to them and is the sole basis for their
arrest and prosecution. If that be so, of what benet would an order of release be since they already
purportedly know the contents of the KPMG report and the Legal Audit by Messrs Coulson, Harney,
Advocates?
125. Thirdly, the court needs to balance the appellants' enjoyment of article 35 rights and the 3rd and
6th respondents' right to privacy under article 31 of the Constitution. Internal working documents,
particularly internal investigation reports which may aect the rights of parties not involved in
litigation such as BAAM’s and Britam’s clients cannot be wished away in granting access to
information held by those parties. More fundamentally, failure by the appellants to establish the
connection between the rights to be exercised or protected and the information requested connotes
that if they were to be granted that information, unwarranted invasion of the privacy of the BAAM and
Britam would be unduly occasioned and may cause substantial prejudice to their commercial interests.
126. Fourthly and lastly, we reiterate that, at the trial court, the appellants will have the opportunity
to interrogate all and any documents to be produced by the DPP. If those documents include the
documents they now desire to have, they will have ample opportunity to study them and challenge their
veracity. As it is, their request is misconceived and we have no hesitation in nding that the appellants
were and are not entitled to the right to access to information under article 35(1)(b) of the Constitution.
Relief available to parties

127. We have said enough to show that the appellants’ appeal is one for dismissal and the proper path for
them to follow is to face the charges at the Chief Magistrate’s Court and let that court determine their
innocence or guilt. They have not persuaded us that they are entitled to any relief and we so nd.
128. Regarding costs, the leading authority on that subject is Jasbir Singh Rai & 3 others v Tarlochan Singh
Rai Estate of & 4 others, SC Petition No 4 of 2012; [2013] eKLR where we stated that costs follow the
event but the court may in appropriate cases exercise discretion and with good reason, order otherwise.
Since the appellants have pursued the matter from the High Court to this court and the respondents
who appeared before us have incurred costs, it would only be fair that the appellants bear the costs of
the consolidated appeal.
E. Orders
129. Consequently, we issue orders as follows:
1. The appeal is moot in regard to the issue of prohibition of the 1st and 2nd
respondents from arresting and charging the appellants.
2. Appeal No 6 (E007) of 2022 dated March 24, 2022 is disallowed save for a
declaration that judicial review proceedings brought under the provisions of
the Constitution must involve a review of merits.
3. Appeal No 4 (E005) of 2022 dated March 9, 2022 is disallowed.
4. Appeal No 8 (E010) of 2022 dated April 12, 2022 is disallowed.
5. The appellants shall bear the costs of all the three appeals to be paid to the 1st,
2nd, 3rd, 4th and 6th respondents.
6. We hereby direct that the sum of Kshs 6000/- deposited as security for costs in
each of the appeals herein be refunded to the appellants.
130. It is so ordered.
DATED AND DELIVERED AT NAIROBI THIS 16TH DAY OF JUNE 2023.
…………………………………………………
M.K KOOME
CHIEF JUSTICE & PRESIDENT OF THE SUPREME COURT
……………………………………………
S.C. WANJALA
JUSTICE OF THE SUPREME COURT
………………………………………………
NJOKI NDUNGU
…………………………………………
I. LENAOLA
…………………………………………
W. OUKO
I certify that this is a true copy of the original
REGISTRAR
SUPREME COURT OF KENYA

SC Case JR Danye

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Dande & 3 others v Inspector General, National Police Service & 5 others (Petition 6 (E007), 4

Proceedings at the High Court

Proceedings at the Court of Appeal

Proceedings at the Supreme Court

i. The petitions of appeal be allowed.

viii. An order of mandamus compelling the respondents to provide the appellants

a. The settlement agreement entered into between

b. The forensic audit performed by KPMG on the books

c. The legal audit performed by Messrs Coulson Harney

The appellants’ submissions

The 3rd and 6th respondents’ submissions

D. Analysis and determination

vi. What relief is available to parties?

Whether the appeal or any part of it is moot.

1. Any person who is aggrieved by an administrative action or decision may apply

a. A court in accordance with section 8; or

b. A tribunal in exercise of its jurisdiction conferred in

80. Fundamentally also, article 23(3) of the Constitution provides that:

3. In any proceedings brought under article 2, a court may grant appropriate

e. An order for compensation; and

f. An order of judicial review.

a. The investigation of any particular oence or oences;

b. The enforcement of the law against any particular

c. The employment, assignment, promotion,

93. The Court of Appeal had this to say in that regard:

Abuse of prosecutorial powers by the DPP

6. The Director of Public Prosecutions shall exercise State powers of prosecution

a. Institute and undertake criminal proceedings against

b. Take over and continue any criminal proceedings

c. Subject to clause (7) and (8), discontinue at any stage

i. Where institution/continuance of criminal proceedings against an accused

(1) Every citizen has the right of access to-

a. Information held by the state; and

b. Information held by another person and

‘every individual has the right to receive information.'

b. Is in possession of information which is of signicant public interest due to its

a. The right that seeks to be protected; and

a. Undermine the national security of Kenya;

b. Impede the due process of law;

c. Endanger the safety, health, or life of any person;

d. Involve the unwarranted invasion of the privacy of

e. Substantially prejudice the commercial interests,

f. Cause substantial harm to the ability of the

g. Signicantly undermine a public or private entity's

h. Damage a public entity's position in any actual or

i. Infringe professional condentiality as recognized in

Relief available to parties

3. Appeal No 4 (E005) of 2022 dated March 9, 2022 is disallowed.

4. Appeal No 8 (E010) of 2022 dated April 12, 2022 is disallowed.

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