TOPIC FIVE

PROSECUTION

5.1 LEGAL BASIS OF PUBLIC PROSECTIONS

Under article 157 (6) of the Constitution prosecutorial authority is vested in the DPP who has
powers to:

a. Institute and undertake criminal proceedings against any person before any court (other
than a court martial) in respect of any offence alleged to have been committed;
b. Take over and continue any criminal proceedings commenced in any court (other than
court martial) that have been instituted or undertaken by another person or authority, with
the permission of the person or authority; and
c. Discontinue at any stage before judgment is delivered any criminal proceedings instituted
by the DPP or taken over by him.
Article 157 (7) – if any such discontinuance takes place after the close of the prosecution case,
the accused shall be acquitted.

Thus, the state through the DPP controls criminal prosecutions. In Wehliye V Republic, [2005] 1
KLR 837, it was observed that the DPP has a special constitutional role in the conduct of
prosecutions and he is under duty to take into account and safeguard public interest. In Republic
v AG & Another ex parte Ng’eny, the HC observed that the AG enjoys both constitutional and
statutory discretion in the prosecution of cases and this should apply mutatis mutandis to the
DPP.

Article 157 (10) - the DPP does not require the consent of any person or authority for
commencement of criminal proceedings and in exercise of his functions he is not under the
direction or control of any person or authority.

Article 157 (11) however proscribes the DPP from exercising his discretion arbitrarily and is
expected to have regard to the public interest, the interests of administration of justice and the
need to prevent and avoid abuse of the legal process.

Inimitably, the DPP may not discontinue a prosecution without permission of the court – Article
157 (8). The HC may also in proper case interfere with a criminal trial in subordinate court if it is
deemed that the prosecution is an abuse of the process of the court and/or because it is
oppressive and vexatious.

Article 157 (9) – DPP’s powers may be exercised by him in person or by officers subordinate to
him acting in accordance with his general instructions, and the said powers, in so far as they
relate to taking over, continuation or termination of criminal proceedings, are so exercisable to
the exclusion of any other person or authority.

5.2 Decision to Prosecute

The decision to prosecute or to discontinue a prosecution is very important given that

prosecutions that are not well founded in law or fact, or do not serve the public interest may
unfairly expose citizens to the anxiety, expense and embarrassment of a trial while the failure to
effectively prosecute guilty parties can directly impact public safety. Indeed wrong decisions
tend to undermine the confidence of the community in the criminal justice system.

Before the enactment of the current constitution, ultimate prosecutorial discretion lay entirely
with the AG. Actually, some categories of cases e.g, prosecution under the Anti-corruption and
Economic Crimes Act (2003, sec 35) could not be lodged in court without his express consent or
concurrence.

Under the current constitution however, the powers of the DPP are no longer exclusive and have
been curtailed in a number of ways;

 Article 157 (12) - parliament is at liberty to confer prosecutorial power on other

authorities.
 Article 157 (8) - DPP may not terminate pending criminal proceedings without the
permission of the court.
 Article 157 (6) (b) - DPP may not take over pending private prosecutions or criminal
proceedings commenced by other authorities unless with latter’s permission.
 Article 157 (5) - DPP serves under a limited and non-renewable tenure of eight years.
 Article 157 (11)- DPP required to act fairly, conscientiously and with due to regard
public interest as opposed to arbitrarily, oppressively or contrary to public policy.
In deciding whether to prosecute, a prosecutor is enjoined to apply two principle tests. These are;
5.2.1 The Evidential Test

This is the most crucial test that prosecutor must employ and be satisfied about, before he
endorses case for prosecution. He must read the complaint, the recorded witness statements,
documentary evidence and other material to determine whether or not there is sufficient evidence
to support a credible prosecution. He must be satisfied that there is ‘realistic prospect of
conviction’ considering that the standard of proof in criminal cases has to beyond reasonable
doubt. He must also mind the admissibility of the evidence and reliability of witnesses proposed
to be called. If the evidence is not sufficient, the prosecution ought not to be instituted and if
already instituted, ought to be halted forthwith and suspect discharged.

In Philomena Mbete Mwilu vs. DPP & 3 Others HCCK Petition No.295 of 2018, it was stated
thus:

……Public prosecutors in applying the evidential test should objectively assess the totality of
evidence and satisfy themselves that it establishes a realistic prospect of conviction. In other
words, public prosecutors should ask themselves; would an impartial tribunal convict on the basis
of evidence available? To make this determination, public prosecutors should therefore consider
the following;

a. If the identity of the accused is clearly established through admissible evidence

b. The strength of the rebuttal evidence
c. Would the evidence be excluded on the basis of its admissibility, for instance under the hearsay
and the bad character rules?
d. Reliability of the evidence considering whether there would be concern about accuracy, credibility
or motivation of the witnesses? What is the suspect’s explanation.......?

5.2.2 Public Interest Test

Even where a case satisfies the evidential test, prosecutor must employ a further test, which is a
complex one, and demands of the prosecutor the highest professional judgment and keen
awareness of the social, political and economic environment which any prosecution must be
conducted or continued. Where a prosecutor forms an opinion that there are public interest
factors militating against instituting or continuing the prosecution, the same ought not to
commence or proceed.
The prosecutor has to strike a balance between a number of relevant considerations falling under
three general rubrics namely, the nature and seriousness of the offence, the interest of the victim
and the broader community and circumstances of the offender. The prosecutor has to consider;

 Whether or not a possible conviction will result in a significant sentence reflecting

parliament’s assessment of the gravity of the offence.
 Whether the offence committed involved offensive weapon, actual violence or a breach
of the peace;
 Whether the offence was against a law enforcement officer, public servant or provider of
essential services e.g. a doctor, nurse or fireman;
 Whether the suspect holds a position of trust or authority so that failing to prosecute him
will set a bad precedent;
 Whether the suspect is a king pin leader or organiser of crime;
 Whether the victim was a child, a person with disability or one vulnerable on account of
age or mental capacity;
 Whether the offence was motivated by discrimination or contempt against the victim or
class to which he belongs;
 Whether the suspect is a habitual offender that should not be left scot-free;
 Whether the offence is a technical one committed on the basis of ignorance or
misunderstanding;
 Whether the offence is in the circumstances a trivial one that has already been or can
easily be rectified;
 Whether prosecution may merely assist the complainant to gain leverage against the
suspect through the use of criminal justice system to settle private issue such as debt
collection
 Whether there has been undue unconscionable delay between the commission of the
offence and intended prosecution
5.3 Challenging Prosecutions

On many occasions, interested persons, principally those against whom decisions to prosecute
have been made, have moved the courts to challenge the same. This is mainly done through two
methods:-
  By way of Constitutional Reference invoking the High Court’s supervisory, interpretative
or enforcement jurisdictions.
 By way of judicial review seeking an order of certiorari, to quash the decision to
prosecute and prohibition to stop the start or continuance of such prosecution
By making an application, an applicant applies for an interim relief stopping the magistrate’s
court from entertaining or continuing with the prosecution pending the hearing of the substantive
application on its merits. In appropriate cases, the High Court would grant temporary stay as
observed in Kipng’eno Arap Ng’eny v. AG whereby it was posited thus:

……In such a case it would be against all common sense not to grant a stay of the criminal
proceedings awaiting the outcome of the application in the High court. The grant of leave is
recognition that the applicants have a case which merits further examination by the court….

5.3.1 Grounds for Challenging Prosecutions

The HC has been, on several occasions, invited to rule on challenges to prosecutions founded on
multifarious reasons.

In DPP v Humphrey’s [1976] 2 All E.R 497, Salmon LJ stated that a judge has not and should
not appear to have any responsibility for the institution of criminal prosecutions; nor has he any
power to refuse to allow a prosecution to proceed merely because he considers that as a matter of
policy ought not to have been brought. It is only when the prosecution amounts to an abuse of
court process and is oppressive and vexatious that judge has power to intervene.

In Republic v Peter Kamau Ndambo HCCC No 28 of 1993, the learned judge highlighted some
instances in which court has power to prevent the prosecution from proceeding with the trial of
an accused person

o Death of the accused person

o Prosecution amounts to an abuse of process of the court and is oppressive and vexatious
that the judge has power to intervene.
o The indictment discloses an offence which a particular court has no jurisdiction to try.
o A nolle prosequi has been entered by the AG (currently by the DPP).
o Matter in bar is pleaded e.g. autrefois convict/ acquit and the plea is tried or confirmed in
favour of the accused.
 o On motion to quash or demurrer pleaded it is held defective in substance or form and not
amended.
In Githunguri v Republic [1985] KLR 34, the HC while considering a constitutional challenge to
prosecution held that delay of itself with nothing more, if sufficiently prolonged, could in some
cases be such as to render criminal proceedings brought long after the events constituting the
offence both vexatious and an abuse. Thus, decision to prosecute may be lost if the accused has
publicly informed that he will not be prosecuted and the property has been restored to him
therefore made to believe that there would be no prosecution thereby destroying or even losing
evidence in his favor. The court thus opined that instances such as where a criminal prosecution
is an abuse of court process, or where it is in contravention of person’s constitutional freedoms
or where the prosecution would be contrary to public policy or interest would warrant
interference with prosecutorial powers.

In Republic v Pattni HCCC 229 of 2003, the court affirmed that where there is inordinate delay,
the AG may lose his right to prosecute while Rawal LJ in John Muritu Kigwe & Another v
Republic HCCC 223 of 2000 held that the court has inherent power to terminate proceedings it
decides are an abuse of the process thus protecting citizens from malicious prosecutions that may
lead to unnecessary infringement and curtailing of their rights.

In Samuel Kamau Macharia & Kibe v AG HC Misc. Application No. 356 of 2000 the HC held
that where a prosecution is instituted for any other purpose than to uphold the legitimate ends of
criminal law, the court will come out strongly to protect any such accused persons.

5.4 Role of Prosecutor

A prosecutor occupies a crucial position in the criminal justice process, a fact that is
acknowledged across the board.

He exercises discretion at specific stages of the criminal justice process including;

a. Decision whether or not to institute criminal proceedings against an accused

b. The decision whether or not to withdraw or stop a prosecution
c. The decision whether or not to oppose an application for bail or release of an accused
who is in custody following arrest.
 d. The decision about which crimes to charge an accused with and in which court the trial
should proceed.
e. The decision whether or not to accept a plea of guilty tendered by an accused.
f. The decision about which evidence to produce during trial.
g. Decision about which evidence to produce during sentencing proceedings in the event of
a conviction and;
h. The decision whether or not to appeal to a higher court in connection with a question of
law, an inappropriate sentence or improper granting of bail or to seek review of
proceedings.
Unlike an advocate for the defense who must do his utmost, within the law, to ensure an acquittal
for his client, the prosecutor stands on a different plane. Much as he must employ and apply
himself diligently and with as much persuasive force and permissible passion, his primary goal is
not and ought never be to secure a conviction.

Archbold’s Criminal Proceedings (2002, pp 324 para 33-11.1) explains the position in these
terms;

Prosecution Counsel should not attempt to obtain a conviction by all means at his command. He
should not regard himself as appearing for any party. He should lay before the court fairly and
impartially the whole of the facts which comprise the case for the prosecution and should assist
the court on all matters of law applicable to the case.

Msagha and Kuloba JJ in Juma & others v AG stated:

Always remember that the purpose of a criminal prosecution is not to obtain a conviction, it is to
lay before the court what the state considers to be credible evidence relevant to what is alleged to
be a crime. The prosecutor has a duty to see that all available legal proof of the fact is presented;
and this should be done firmly and pressed to its legitimate strength, but it must also be done
fairly. The role of prosecutor excludes any notion of winning or losing. His function is a matter of
public duty which in civil life there can be none charged greater personal responsibility. It should
be efficiently performed with an ingrained sense of the dignity, the seriousness and the justice of
judicial proceedings

The role of the prosecutor to bring all facts of the case as completely and fairly as possible for
the court to ensure a fair determination was soundly endorsed by the COA in Thomas Patrick
Cholmondley v Republic [2008] eKLR (Criminal Appeal No. 116 of 2007). Thus, prosecution is
duty bound to do a pre-trail disclosure requiring that all statements and statements intended to be
relied upon at the trial be availed to the defense beforehand. Indeed, pre-trial disclosure is now a
constitutional duty which demands that an accused person be informed in advance the evidence
the prosecution intends to rely on and to have reasonable access to that evidence [Article 50(2)
(j)]

Lesiit J in Republic v Pattni [2005] 1 KLR 310 also opined that;

I am fully persuaded that witness statements, exhibits and documents obtained by the prosecution
after investigations are not the property of the prosecution but of the public to ensure that justice is
done.

While the courts have been right in upholding and enforcing the pre-trial disclosure duty of the
prosecution, it however seems that the COA in Chomondley’s case over-reached and probably
misdirected itself in stating that the defense has no corresponding duty to make available witness
statements to the prosecution. It seems plain that once an accused person has been placed on his
defense and he indicates that he is will be calling witnesses; there is nothing objectionable about
him being required to give details of the said witnesses and avail copies of the statements. It
would only be offensive to law and contrary to the constitutional right of silence were the same
to be required of his own statement. Moreover, section 9 (e) of the Victims Protection Act [2014]
expressly provides for the disclosure by the defense and is therefore doubtful whether the COA’s
decision remains to be good law.

Although not fixated on seeking conviction at any cost, prosecutor’s responsibilities, though
several can be seen as threefold;

 Enforcing the law

 Representing the government in matters of criminal law
 Representing the society in the attainment of criminal justice.

5.5 Nolle Prosequi

This a formal entry on the record by which the DPP states in court or declares in writing that he
has determined that the case shall not continue. He may enter a nolle prosequi

 As to some counts
 As to some accused persons
 Altogether
The power to enter a nolle prosequi stems from the fact that the DPP has a general discretion
with regard to criminal prosecutions and can terminate any existing criminal proceedings or part
thereof at any time or stage before the verdict or judgment. A nolle prosequi may be entered due
to many reasons such as;

 The insufficiency or inadmissibility of evidence to support the conviction of the accused

[seanoi Parismei ole Sisina & others v AG HCCC No.345 of 2005] - this happens when
the case has already begun. It removes cases in which the accused indeed may be guilty
but the prosecution is almost certain to lose.
 Plea negotiations
 Necessity of screening out trivial cases.
Previously, once a nolle prosequi was entered, the accused was at once discharged in respect of
the charge for which it was entered and it mattered not what stage the proceedings had reached
so long as a verdict had not been rendered. Under Article 157 (7) of the constitution however, if
the discontinuance takes place after the close of prosecution’s case, the accused shall be
acquitted. In Rupert Nderitu & Others v Republic HCCA No. 319 1985, it was held that entering
a nolle by the AG is not subject to the leave of court. However, under Article 157 (8) of the
constitution, the DPP may not discontinue a prosecution without permission of the court.

Indeed, courts are entitled to know the reasons why the DPP or his agent seeks to enter a nolle
prosequi. The HC in Crispus Karanja Njogu v AG HCCA No. 39 of 2000 held that it was
possessed of inherent supervisory jurisdiction to ascertain that the AG’s powers and/or discretion
was being properly exercised. Where the nolle is deemed by the court to be oppressive,
unreasonable and capricious, it is declared null and void and of no legal consequence. In
Republic v Adan Keynan Wehliye, [2005] 1KLR the HC quashed a nolle prosequi entered after
11 witnesses out of possible 40 witnesses had testified. The court held that the entry of a nolle at
that stage of proceedings in order to recharge the accused person with other accomplices was
prejudicial to the trial rights of the accused.

Notably, a nolle does not operate as a bar to subsequent proceedings against an accused on
account of the same facts. If however it is entered after the close of the prosecution’s case, it
would lead to the defendant’s acquittal. In Alielo v Republic [2004] 2KLR 333 the court held that
in deciding whether an accused person will suffer any prejudice if the termination of a case is
permitted with a view of freshly charging him, the following principles should guide and apply
in every case where the DPP seeks to terminate a prosecution;

a) Whether basic rights will be violated or are likely to be violated in a fresh trial after
allowing the nolle to take effect.
b) Whether the basic purpose of our criminal justice system which is predominantly to
determine the guilt or innocence of the applicant is to be used towards the achievement of
any different purpose and;
c) Whether indeed fresh prosecution is called for merely to punish the applicant and thus
oppress him through the use of the nolle prosequi.
A nolle can only be entered in respect of a living person as held in Msiwa and another v.
Republic [1999] 2 EA 190. Obviously, a dead person cannot be discharged and his case may only
abate.

5.6 Private Prosecutions

Both the constitution [Article 157 (6) (b)] and the criminal procedure code [sections 88 &89]
contemplate private prosecutions. Such prosecutions are necessary and logical corollary to the
fact that the DPP may choose not to prosecute an otherwise prosecutable case. The objective and
purpose of private prosecution was highlighted by the House of Lords in Gouriet v Union of post
office workers whereby Wilberforce LJ explained that it is the duty of the AG to take steps to
enforce the law by prosecuting a person who commits an offence. Failure to do so, without good
cause, is a breach of that duty. The individual in such cases who wishes to see the law enforced
has a remedy of his own; he can bring a private prosecution. This right safeguards against inertia
or partiality on part of authority.

In Richard Kimani & M. Maina v Nathan Kahara HCCC No. 11 of 1983, the HC saw the
mechanism of private prosecutions as a counter weight to influence of the wealthy and the
powerful, who may wish to stifle their own prosecutions for offences committed. Thus, a private
citizen may wish to institute a private prosecution where;

i. The state is unwilling to prosecute or;

ii. There is real apprehension or fear of official lethargy, corruption or bias
In Gregory & another v Republic thro’ Nottingham & 2 others [2004] 1KLR 547, the court
stated that it would not be averse to the private individual undertaking the prosecution task if;

a) The complaint in question is one that essentially turns on limited, private rights
b) The AG (now DPP) is not inclined to take up the task
The court further explained that no private individual should undertake prosecution in broad
matters that will incorporate the public interest. Thus, private prosecution is somehow limited in
that it generally excludes serious criminal matters and applies where limited private interests are
involved.

5.6.1 Procedure

Step 1 - Any person may make an application personally or by an advocate and should within 30
days of instituting such proceedings, notify the DPP in writing of such prosecution.

Step 2- Permission ought to be sought before initiating private prosecution proceedings. Leave
must be sought under section 88 (1) of the CPC from a magistrate to conduct a private
prosecution (see Otieno Clifford Richard v Republic HC Misc. Civil Suit No. 720 of 2005).

Step 3- The application shall be by way of a notice of motion accompanied by certificate of

urgency and a supporting affidavit setting out the ground upon which the applicant is relying
upon. It shall set out the complaint and request for permission requesting for private prosecution.

Such permission is a matter of discretion to be exercised judicially and judiciously. In Kahara’s

case, the HC laid down certain rules in form of questions that a magistrate should ask and be
satisfied on before granting permission for private prosecution.

a. Has any complaint made to the AG (currently the DPP) or the police and if so, what was
the result? If no such report has been made, the magistrate may either adjourn the matter
to enable a report to be made and await a decision thereon or in simple cases like assault
or trespass proceed to grant permission and notify the police of that fact.
b. How the complainant is involved- what is the complainant’s locus standi?
c. Has he personally suffered any injury or danger?
d. Is he motivated, actuated or impelled by malice or political considerations?
If the foregoing is satisfied, the court will then at its own discretion draw or cause to be drawn a
formal charge containing a statement of offence(s).

Under section 348 A of the CPC it’s only the AG [DPP] who can appeal from an order of
acquittal by a subordinate court as a private prosecutor is not permitted to do so. In Njoroge v
Karanja [1984] KLR 662 where an accused had been acquitted under section 210 of the CPC of
the offence of malicious damage to property, private prosecutor’s appeal was dismissed. Equally
in Shah v Patel [1954] XXI EACA 236 it was similarly held that a private prosecutor is not
entitled to be heard on appeal.