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The application dated 26 th August 2025 seeks leave to commence private prosecution.
The application is expressed to be brought under Sections 1A, 1B, 3A, 3B of the Civil Procedure Act, order 51 Rule 1 of the Civil Procedure Rules 2010 , Article 157(6) of the Constitution of Kenya, Section 88 (1) of the Criminal Procedure Code and Section 28 of the ODPP Act and all other enabling provisions of the law.
The applicant did not appear during the mention and counsel for the state urged the court to dismiss the application for want of prosecution as well as on the basis that the application is before the wrong forum and should be struck out.
Counsel for the prosecution basically raised the issue of jurisdiction of the court to entertain the application.
This court has noted that the issue of jurisdiction raised by counsel for the state is validly taken.
The Criminal Procedure Code under Section 88 (1) provides that the trial magistrate before whom a criminal matter is being tried may grant permission to any person to prosecute. The wording of the section is clear that it is the court before whom the matter is to be tried.
The Notice of Motion in the Second order clearly lists the nature of offences contemplated by the applicant against the suspects Sarah Muchene and Advocate Erick Amati.
All the offences set out are triable in the magistrate’s Court, thus leave ought to have been sought in the magistrate’s court and not the High Court.
It would have been different if the offences mentioned were offences triable only by the High Court in which case one could properly invoke the provision of Article 165(3)(a) of the Constitution to seek leave upon satisfying the court that the Director of Public Prosecutions has failed or neglected to prosecute.
The applicant, by moving straight to the High Court, has failed to appreciate that Article 162 of the Constitution clearly establishes the position of subordinate courts in our court system and their jurisdiction to determine matters cannot be usurped by the High court under the guise of exercising supervisory jurisdiction under Article 165 (6) of the constitution.
The applicant has invoked Article 165 (6) of the Constitution as a basis of establishing jurisdiction of this court to hear and determine the matter. This court however finds that the provision of the Constitution is inapplicable in this matter because there is absolutely decision of the subordinate court that is under challenge on the basis of its legality correctness or propriety.
Further, the applicant has also invoked provisions of the Civil Procedure Rules which are with tremendous respect to counsel inapplicable in a matter of this nature
The applicant further seeks leave to commence private prosecution against known individuals, but in the application he has omitted to enjoin them either as respondents or interested parties
The orders sought if even if the court will to find that it has jurisdiction to entertain this matter possibly be granted without hearing the intended accused persons. The court would be acting in clear violations of the basic rules pf natural justice by condemning a party without hearing them.
As I have stated the application seeks leave to prosecute in connection with offence triable by the magistrates’ court in the first instance. This court therefore lacks jurisdiction to entertain the application. In Owners of Motor Vessel Lillian “S”Vs Caltex Oil (K) Ltd (Civil Appeal 50 of 1989) [1989] KECA 48 (KLR) the Court of Appeal held that jurisdiction is everything and without it a court must down its tools.
It is this court’s finding that it lacks the jurisdiction to entertain this application and orders its striking out.
To entertain an application for private prosecution application directly presented to this court would also deny the parties against whom the private prosecution is intended to be commenced, their right of Appeal or Revision to this court should they be dissatisfied with the court order.
This must clearly be avoided in the Spirit of Article 50 of the Constitution which guarantees the right to a fair hearing.
Accordingly, the application is found to be incompetent and is accordingly struck out.
The applicant should move to the appropriate forum.
It is so ordered.
The file is closed.
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The application dated 26 th August 2025 seeks leave to commence private prosecution.
The application is expressed to be brought under Sections 1A, 1B, 3A, 3B of the Civil Procedure Act, order 51 Rule 1 of the Civil Procedure Rules 2010 , Article 157(6) of the Constitution of Kenya, Section 88 (1) of the Criminal Procedure Code and Section 28 of the ODPP Act and all other enabling provisions of the law.
The applicant did not appear during the mention and counsel for the state urged the court to dismiss the application for want of prosecution as well as on the basis that the application is before the wrong forum and should be struck out.
Counsel for the prosecution basically raised the issue of jurisdiction of the court to entertain the application.
This court has noted that the issue of jurisdiction raised by counsel for the state is validly taken.
The Criminal Procedure Code under Section 88 (1) provides that the trial magistrate before whom a criminal matter is being tried may grant permission to any person to prosecute. The wording of the section is clear that it is the court before whom the matter is to be tried.
The Notice of Motion in the Second order clearly lists the nature of offences contemplated by the applicant against the suspects Sarah Muchene and Advocate Erick Amati.
All the offences set out are triable in the magistrate’s Court, thus leave ought to have been sought in the magistrate’s court and not the High Court.
It would have been different if the offences mentioned were offences triable only by the High Court in which case one could properly invoke the provision of Article 165(3)(a) of the Constitution to seek leave upon satisfying the court that the Director of Public Prosecutions has failed or neglected to prosecute.
The applicant, by moving straight to the High Court, has failed to appreciate that Article 162 of the Constitution clearly establishes the position of subordinate courts in our court system and their jurisdiction to determine matters cannot be usurped by the High court under the guise of exercising supervisory jurisdiction under Article 165 (6) of the constitution.
The applicant has invoked Article 165 (6) of the Constitution as a basis of establishing jurisdiction of this court to hear and determine the matter. This court however finds that the provision of the Constitution is inapplicable in this matter because there is absolutely decision of the subordinate court that is under challenge on the basis of its legality correctness or propriety.
Further, the applicant has also invoked provisions of the Civil Procedure Rules which are with tremendous respect to counsel inapplicable in a matter of this nature
The applicant further seeks leave to commence private prosecution against known individuals, but in the application he has omitted to enjoin them either as respondents or interested parties
The orders sought if even if the court will to find that it has jurisdiction to entertain this matter possibly be granted without hearing the intended accused persons. The court would be acting in clear violations of the basic rules pf natural justice by condemning a party without hearing them.
As I have stated the application seeks leave to prosecute in connection with offence triable by the magistrates’ court in the first instance. This court therefore lacks jurisdiction to entertain the application. In Owners of Motor Vessel Lillian “S”Vs Caltex Oil (K) Ltd (Civil Appeal 50 of 1989) [1989] KECA 48 (KLR) the Court of Appeal held that jurisdiction is everything and without it a court must down its tools.
It is this court’s finding that it lacks the jurisdiction to entertain this application and orders its striking out.
To entertain an application for private prosecution application directly presented to this court would also deny the parties against whom the private prosecution is intended to be commenced, their right of Appeal or Revision to this court should they be dissatisfied with the court order.
This must clearly be avoided in the Spirit of Article 50 of the Constitution which guarantees the right to a fair hearing.
Accordingly, the application is found to be incompetent and is accordingly struck out.
The applicant should move to the appropriate forum.
It is so ordered.
The file is closed.
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