The High Court in Siaya has dismissed a petition filed by two men who claimed the state had abused its powers by prosecuting what they described as land ownership disputes.
Japheth Arega Were and Samuel Wadugu Opowo sued the Director of Public Prosecutions (DPP) and the Director of Criminal Investigations, arguing that the criminal justice system had been used to resolve matters they maintained were private civil disputes over land.
The petitioners alleged they had been subjected to repeated arrests and detention, which they said left them financially strained and psychologically distressed.
They sought a declaration that the conduct of the DPP at Madiany Law Courts was unlawful, unconstitutional and an abuse of prosecutorial powers and duties.
They also sought a declaration that a defective charge sheet could not sustain a conviction, as well as general damages, costs and an order restraining the respondents from frustrating them over land whose ownership dispute was still pending before a civil court.
The dispute centred on a parcel of land allegedly transferred using a fake court order.
The first petitioner told the court he was arrested twice, in 2024 and 2025, detained for four days and later for two weeks at Siaya Maximum Prison, and paid cash bail totalling Sh40,000.
He also claimed his crops were destroyed, leaving his family without food, and that he suffered psychological torture and defamation.
The DPP and the DCI opposed the petition, arguing that it was “defective, misconceived and an abuse of the court process”.
The respondents said the petitioners had failed to provide admissible evidence to support their allegations of fraud, malice and abuse of office. They further argued that the petitioners' statements were “unsworn averments that hold no evidentiary value in law”.
They maintained that the ownership dispute belonged before the Environment and Land Court and did not constitute a defence to criminal charges.
In his judgment, Justice David Kemei found that the DPP had acted within his constitutional mandate.
The court noted that Criminal Case No. E388 of 2024 had been withdrawn under Section 87(a) of the Criminal Procedure Code after it emerged that a civil suit involving the same parcel of land was already pending.
“I find that the petitioners have failed to place any admissible evidence before this court to support the grave allegations of fraud, malice and abuse of office levelled against the first respondent and the investigative officers,” the judge ruled.
“The verifying affidavit sworn by the petitioners is defective in substance as it merely verifies the plaint but fails to verify the specific facts and circumstances relied upon to allege violation of rights, rendering the petition hollow and unverified.”
The judge held that the petitioners could not “begrudge” the DPP for “performing his duties under the constitution” and said the issues they had raised could be addressed before the trial court or the Environment and Land Court.
“Consequently, I come to the inevitable conclusion that the petition is bereft of any merit and that the same is hereby dismissed with no order as to costs,” he ruled.
