The Court of Appeal has ruled that a court-sanctioned eviction order does not shield a disputed land occupant from criminal prosecution, dismissing an appeal by George Njoroge Kariuki, who sought to halt fraud and forgery charges linked to a disputed property in Nairobi.

In a judgment delivered, the appellate court upheld an earlier High Court decision declining to quash criminal charges against Kariuki arising from an eviction exercise conducted on the property.

According to court documents, Kariuki moved to the High Court seeking judicial review orders to stop his prosecution in a Milimani Chief Magistrate’s Court criminal case, where he is charged alongside others with offences including conspiracy to defraud, forgery and trespass.

He argued that the charges stemmed from an eviction process authorised by the Environment and Land Court (ELC).

In March 2023, the ELC granted Kariuki orders to evict persons from the property and directed the Officer Commanding Kasarani Police Division to provide security during the exercise.

Kariuki maintained that he acted strictly within the confines of that court order and that the subsequent criminal charges were not in good faith and were intended to pressure him to relinquish his title.

“The appellant gave an account of the proceedings in the ELC and Court of Appeal relating to the said order, and averred that the decision by the respondents to charge him was manifestly tainted with illegality and irrationality, being in contradiction with the decision of the ELC which has not been set aside,” the judgment reads.

He further contended that allegations of forgery concerning documents related to the property had been addressed in the ELC proceedings and that the decision to prosecute him contradicted a valid court order that had not been set aside.

However, the High Court dismissed his judicial review application, finding that he had not demonstrated illegality, irrationality or procedural impropriety on the part of the Director of Public Prosecutions (DPP) or the Director of Criminal Investigations (DCI).

The DPP and DCI countered that the prosecution was lawful, conducted in good faith and based on evidence.

They said civil and criminal cases can run concurrently, that the charges were not malicious, and that halting the trial would deny complainants their right to a fair hearing, contrary to Article 50 of the Constitution.

Dissatisfied with the High Court decision, Kariuki appealed to the Court of Appeal.

In dismissing the appeal, the appellate judges framed the central issue as the legal effect of the ELC eviction order on the decision to prosecute.

The court emphasised that civil and criminal proceedings can run concurrently under Section 193A of the Criminal Procedure Code.

The existence of a civil dispute or a court order in a civil matter, the judges held, does not automatically bar criminal investigations or prosecution.

“No finding was made by the Judge in the ruling regarding the propriety of the appellant’s title and ownership of the suit property, which was not in any event the subject matter of the application, and therefore the ruling cannot be evidence in support of the appellant’s averments as regards ulterior motives on the part of the prosecution,” the bench said.

The court further noted that the ELC ruling referenced competing claims over the property and investigations into multiple titles, which the judges said demonstrated a factual basis for criminal investigations.

The appellate bench rejected Kariuki’s argument that the prosecution was aimed at coercing him to surrender his title.

The judges found no evidence that the criminal proceedings were instituted for an ulterior purpose or in abuse of the court process.

They also underscored the limited role of judicial review, stating that it concerns the legality of decision-making rather than the merits of the decision itself.

The court said Kariuki retains the opportunity to present his defence, including any claim of lawful ownership, before the trial court.

In upholding the High Court’s decision, the Court of Appeal concluded that the trial judge had properly exercised discretion in declining to halt the prosecution.

The appeal was dismissed, with no order as to costs.