Complainants cannot withdraw a criminal case themselves. How withdrawal by the prosecutor, reconciliation and diversion actually work, and what happens to the accused.
By Wakili Link Editorial
People often assume that if the complainant "forgives" the accused, the case ends. In Kenya that is not how it works: once a person is charged, the case belongs to the State, and the Director of Public Prosecutions (DPP) decides whether it continues (Article 157 of the Constitution).
Under section 87(a) of the Criminal Procedure Code, the prosecutor can withdraw a charge with the court's consent at any time before judgment.
The court can refuse consent if the withdrawal is not in the public interest or appears to abuse the process.
For less serious offences, the court can promote reconciliation between the complainant and the accused, for example where compensation has been paid (section 176 of the Criminal Procedure Code). If reconciliation succeeds, the court can order the proceedings stayed or terminated. It is not available for serious offences such as sexual offences or violent felonies.
The ODPP's diversion policy allows some cases — particularly first-time and minor offenders — to be diverted out of the court process on conditions such as restitution or community programmes.
You can write to the investigating officer or the prosecutor explaining that you no longer wish to pursue the matter, or that you have reconciled. The prosecutor will consider this, but may still proceed — especially where there is public interest, such as in domestic violence or corruption cases.
Never approach a complainant or witness to "settle" without an advocate. Pressure on a witness can amount to a separate offence. An advocate can open discussions with the prosecutor about withdrawal, reconciliation or a plea agreement.
This article is general information, not legal advice on your situation.
This article is general information, not legal advice on your situation. If you need advice, describe your matter on Wakili Link and we will match you with a verified advocate who handles it.
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