The High Court in Siaya has dismissed a petition by three family members seeking to stop retrial in a case that was dropped last year.
Ibrahim Ouma Ayako, Kennedy Otieno Ouma and Peter Ochieng Ayako were initially charged with robbery with violence when they were first arraigned on July 17, 2023.
Ibrahim is the father of the second and third petitioners.
The state withdrew the case in February 2025 after the prosecution said the police file was missing.
Shortly after, police launched a midnight raid and rearrested them. The were charged afresh with the same offences.
They however challenged their prosecution claiming the state reopened the case without getting court approval, which amounted to an abuse of judicial process and aimed "to smuggle new evidence without the order of the trial court".
“During the second arrest, the petitioners aver that they were not informed of the reason of their arrest in the middle of the night and upon questioning the reason for the arrest, the first petitioner (Ibrahim) was hit with a gun butt. That until they were arraigned in court, they were never informed of the reason for the arrests,“ the court heard.
The petitioners contended that they were being maliciously prosecuted as a result of a long standing land dispute between the first petitioner and the complainant, which land case is still active in court.
They claimed trouble started when Ibrahim reported illegal mining on his property to the chief and the police.
Instead of looking into the mining claims, the police allegedly turned on the family and charged them with robbery with violence—a charge they claims was fabricated to settle scores over the land dispute.
In their petition dated May 2, 2025, the three sought a declaration that their prosecution was illegal, amounted to an abuse of the court process and violated their constitutional rights. They also sought an order suspending their arrest and prosecution, along with damages for malicious prosecution and violation of their rights.
However, the respondents—the Director of Public Prosecutions and the Attorney General—argued that the fresh charges were completely lawful and that the family had no proof of any rights violations.
The state opposed the petitioners' application to suspend their arrest and prosecution.
The prosecution maintained that such an order is unnecessary because they intend to properly pursue the active case and have no plans to file separate charges based on the same facts.
Justice David Kemei agreed with the state, pointing out that the family and their lawyer had agreed to the initial withdrawal in open court and later took a fresh plea without objecting.
“The petitioners cannot now turn around and attempt to fault the court process in which they fully participated.”
The judge also observed that the men had not asked the trial court to stay proceedings, yet they were seeking parallel relief in the High Court. “It is rather ironical for the petitioners to pursue reliefs in this court and yet they are still proceeding with their criminal case in the lower court,” the judge stated.
“As they have not sought for stay of proceedings in that court, then they should continue with it and not seek parallel reliefs elsewhere.”
The court held that the DPP “is mandated to institute and undertake criminal proceedings against any person before any court… and may also discontinue such proceedings at any stage before judgment is delivered”.
The judge concluded that the petition lacked merit and was an abuse of the court process.
