REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MAKUENI
HIGH COURT REVISION CASE NO E101 OF 2025
MAGDALENE NDUNGE MUSAU ……………………APPLICANT
VS
REPUBLIC……………………………………………………….DPP
AND
ANDERSON MUTHINI PETER …………………INTERESTED PARTY
RULING
In MCCR no E602 of 2024 Anderson Muthini Peter was charged with obtaining by false pretenses contrary to section 313 of the Penal Code The particulars were that on the 21 st day of November 2023 at 0902 hours at WOTE Township in Makueni Sub County within MAKUENl County with intent to defraud he obtained from Magdalene NDUNGE MUSAU the sum of Kenya shillings 150000 by falsely pretending that he had been given a tender to supply tyres at the MAKUENI County government and upon receiving the payment of the said supply he would refund the principal amount of Kenya Shillings 150,000 and interest of KSH 50,000 to the said Magdalene NDUNGE MUSAU,
Attached to the charge sheet was an agreement dated 21 st November 2023 between Peter Anderson and Magdalene Musau ‘to carry out a job at the County Government Ref No.1365003/2023/2024 for supply of tyres. The total contract amount is Ksh 404,500. Magdalene Musau of ID 25892856 has invested Ksh 150,000to receive profit of Ksh 50,000plus the principal capital”
The agreement is signed by both parties and a third party presumably the witness.
Plea was taken on 28 th October 2024 and the accused pleaded not guilty . The matter was fixed for hearing on 19/11/2024. On that day the accused person asked for one month to pay the whole amount. The prosecution had no objection. The matter was fixed for settlement on 17/12/2024. On that day Mr.Mutuku appeared for the complainant. The Prosecutor told the court that the accused was ready to settle .
The matter was fixed for hearing on 17/2/2025. Mr. Muthui appeared for the accused, Mr. Mutuku for the complainant.
Mr. Muthui told the court that the needed two weeks to make payment the proceed . The prosecution had no objection.
On 3 rd March 2025 Mr. Mutuku appeared for the complainant/ Mr. Muthui for the accused and he told the court that accused had paid Ksh 100,000. He asked for 60 days . Prosecution proffered 30 days .
On 15/4/2025 Mr. Muthui said that accused had paid Ksh 30,000 and sought a further 30,000. Mr. Mutuku opposed on the ground that the 30 days accused had asked for were over.
A hearing date was fixed for 19 th May 2025.
On that 19 th May 2025 Mr. Muthui told the court that accused had paid Ksh 150000. That there was a balance of Ksh 50,000as indicated in the charge sheet , that the matter was coming up for NTSC .
On that the Prosecutor applied to with draw under s. 87(a) of the CPC.
Mr. Mutuku opposed the application stating that he Ksh 200,000.
The Court stated as follows ” the prosecution has indicated that it does not wish to proceed with the matter as accused has paid Ksh 150000. The balance is Ksh 50,000 which is indicated as interest can be pursued in the civil matter in Makindu Small Claims Court for which the Complainant has a judgment in her favour. Counsel watching brief for the complainant is of a different opinion and prays that the matter proceeds for hearing. I agree with the prosecution and defence counsel that on one hand admits the receiving the sum of Ksh 150000 and on the other hand want to have accused tried. She has a decree in the civil matter and can easily pursue the interest of 50,000 indicated in particulars of the charge . I allow the application by the prosecution and proceed to withdraw this matter under s. 87(a) of the CPC.”
Aggrieved by this ruling the applicant through her counsel Mr. Mutuku filed an application for revision of this decision vide the letter dated 20 th May 2025 . The ‘accused ‘ joined the matter as an interested party.
In the letter counsel avers that they were instructed to watch brief in the matter and they also advised their client to lodge a civil claim which she did and they filed Makindu Small Claims Case number E001 of 2025 Magdalene and NDUNGEMUSAU versus Anderson PETER . This was on the basis that Criminal proceedings are not a bar to civil proceedings as the two are distinct and meant to achieve different purposes. As at the date of the request for revision they had already obtained a judgment in the civil case for the sum of Kenya shillings 200,000 plus s costs, and that the judgment was entered on admission by the accused of his own indebtedness to the applicant.
According to the application the criminal case came up several times for mention where the accused person promised to pay but he never repaid the full amount .That the trial court set the matter for hearing and a hearing date was set for 19 th of May 2025 as per the cause list of that date. That the complainant was present to testify in court. That counsel for the accused person made an application to the effect that the applicant accused had already paid 150,000 shillings to the complainant and the balance was Ksh 50,000 and which was of the interest and which could not be pursued in a criminal court .That in response the prosecutor supported the application and proceeded to make an application to withdraw the matter under section 87 (a) of the Criminal Procedure Code.
According to the applicant this was strange that Counsel for an accused person would make an application for withdrawal which was the mandate of the DPP under Article 157(6) of the Constitution, and that the manner in which the prosecutor supported the application led the applicant to believe that the ‘ matter had been compromised and that they were falling into a trap that had already been waylaid.’
The complainant took the position that CIVIL proceedings are not a bar to criminal proceedings and that the trial court was always aware of the existence of the civil proceedings even as it fixed the matter for hearing. On that account counsel for the complainant opposed the application for withdrawal of the case.
In the letter Counsel stated that the trial court suggested to the parties that insisting on proceeding with the hearing of the criminal case could boomerang on his client as there was a possibility of the accused being acquitted under section 210 of the CPC and filing a case for Malicious prosecution. Counsel took the position that it was clear to them that the accused had defrauded his client and never refunded the money and they had no such fear. The applicant disagrees with the court’s position that since the complainant had received part of the money of Ksh shillings 150,000 she could not push for the hearing of the criminal matter . stating that the charge sheet stated that total amount defrauded was Kenya shillings 200000 and the loan agreement provided by their client to the prosecution indicated the same sum of money.
That they were not surprised when they trial court delivered its ruling allowing the application by the DPP to withdraw the matter and the accused person was discharged. The applicant is of the view that the court grossly misapprehended the law , and the proceedings before it on the 19 th May 2025 were a travesty of justice ,a nullity and an abuse of the court process and it is on that basis that this application for revision has been brought seeking the following prayers ;
i. that the court do call and examine the record in Makueni MCCRC E602OF 2024 Republic versus Anderson Peter to satisfy itself on the correctness, legality and propriety of the proceedings and the orders issued on the 19 th may 2025;
ii. that the court does revise, vary and/or set aside the orders issued on 19 th May 2025 by the honorable Chief Magistrate and order that the trial proceeds to its logical conclusion before any other court of competent jurisdiction and further that the prosecution be conducted by any other officer of the DPP other than the current officer who made the application for withdrawal
The application is premised on Article 165(6) and (7) of the Constitution which are the provisions that grant the High Court Supervisory jurisdiction over subordinate courts and tribunals and sections 362, 364 and 365 of the Criminal Procedure Code which provide for the revision powers of the High Court.
The applicant cites section 362 which states that the high court has the power to call for and examine the record of any criminal proceedings before any subordinate court for the purpose of satisfying itself as to the correctness, legality, or propriety of any finding, sentence, or order recorded or passed and as to the regularity of any proceedings of any such subordinate court.
The applicant also cites article 157 (11) of the Constitution on the mandate of the DPP to have regard to public interest, the interest of the administration of justice ,and the need to prevent and avoid abuse of the legal process. It is his position that the applicant as the victim having come to court ready to testify was not informed in advance of the prosecution’s intention to withdraw the case and was ambushed by application for withdrawal.
The applicant cites section 4(2 )of the Victims Protection Act which requires the court or any administrative authority or person performing functions under the act to ensure that every victim is as far as possible is given an opportunity to be heard and to respond before any decision affecting him or her is taken. That this requirement is provided for under section 9(2) and 9(3) of the Victims Protection Act no. 17 of 2014. That the DPP was supposed to protect the interests of the complainant abdicated his responsibility and without prior notice to the complainant opted to withdraw the matter. That Article 158(7) of the Constitution empowers the DPP to discontinue a matter but they can only do so with the permission of the court. This provision is mirrored in section 87( a) of the criminal procedure Code hence the court was required to interrogate the merits of the application by the prosecution;
That it was incumbent on the trial court to ask itself the following questions. What was the nexus between the civil case and the criminal case? what if the accused had no assets capable of being attached to settle judgment? where was this line of reasoning when this matter was being previously mentioned by the trial court? did it just occur to the trial court that there was a civil case? what if the civil case had not been filed?
The applicant cited Republic v Peter Kibe & 7 others [2021] KEHC 3281 (KLR)
where, while dealing with a similar application I stated
“ 38. This guard against the whimsical application of this power is to be found at Article 157(11) of the Constitution provides that:
" In exercising the powers conferred by this Article, the Director of Public Prosecutions shall have regard to the public interest, the interests of the administration of justice and the need to prevent and avoid abuse of the legal process."
39. As for the subordinate courts obligation when dealing with such an application from the ODPP, the bar is set by the Constitution. The court would have to be satisfied that power is not being exercised outside its boundaries: public interest, interests of justice, prevention of abuse of the legal process. There is exercise of discretion by the court which discretion must be exercised judiciously taking into account the facts of each case and in particular whether the application abides by these provisions
It was submitted that the manner in which this application was allowed left the applicant wandering whether they were extraneous consideration for this proposition the applicant relied on ABRAHAM OTIENO v REPUBLIC [2011] KEHC 2213 (KLR) where the Judge rendered himself thus
One is left wondering whether truly the learned magistrate was alive to the tenets of law and the oath of his office when he convicted the appellant as aforesaid. Or did he do so upon extraneous considerations. Was he the grand master who was approached by external forces in order that he may invoke our criminal justice system unfairly to settle scores? From what is on record I have no doubt at all in my mind that the learned magistrate had no conviction at all in the judgment he crafted and eventually delivered as aforesaid. He must have been dancing to the tune of external forces. The magistrate was a senior judicial officer, of the rank of Ag Senior Principal Magistrate. There can be no justification for such scrappy and injudicious decision.
The applicant also relied on REPUBLIC v ENOCK WEKESA & another [2010] KEHC 4133 (KLR) which was cited in Kibe herein above.
The court was of the view
4. Surely if the case were to be terminated, should the complainant not be given a reason? Should the court that gives the leave to terminate the proceedings be a mere rubberstamp? Is asking questions that will satisfy the court that there is no abuse of process interference with the powers of the Director of Prosecutions? The criminal charges that are before the learned trial magistrate involve both the accused persons and the complainants who were the victims. By the trial Magistrate seeking for reasons so as to satisfy herself that there is no abuse of the legal process cannot be said to overstep on the powers of the Director of Prosecutions… The Constitution provides that public interest, the interest of justice and abuse of the legal process be protected, this is the duty of the trial court.
Anderson MUTHINI PETER filed a replying affidavit as the interested party in the matter.
He confirmed that he was charged with that offense of obtaining money by false pretenses and that he was not represented at the time of taking plea where he pleaded not guilty but requested time to refund the money in full. That the request was not objected to by the prosecution and that he made the proposal out of good faith and without any admission of guilt being mindful of the time and resources that could be saved by resolving a matter that was in essence a commercial disagreement outside protracted criminal proceedings. He deponed that he had legal advice that such a commercial transaction was governed by civil law and not by criminal liability under section 313 of the Penal Code. He deponed that all the proposals he made were voluntary, transparent and in full view of the court ,the prosecution as well as counsel for the complainant and that by 19 th of May 2025 he had already paid the sum of Kenya shillings 150,000 to the complainant leaving a sum of 50,000 which he remained willing to settle. That both the prosecution and the complainant acknowledged the payment. According to him the prosecution assessed the circumstances of the matter, recognized the civil character of the underlying dispute as well as his bona fide efforts to make good the alleged claim and applied section 87 (a) of the Criminal Procedure Code . Further that he is advised that the DPP acted in accordance with his constitutional mandate as per articles 157(6) (c ) And 157(8) 157(10) and 157(11) of the Constitution. is only triggered where the subordinate court has acted illegally, improperly and in a manner; That section 362 and 364 of the Criminal Procedure Code would be applicable in a case where there was illegality or impropriety and likely to miscarriage of justice but none had been demonstrated; That the complainant invoking these powers and this was a misuse of the court process and amounted to an effort to criminalize a private loan dispute having an active civil suit at Makindu law courts where he could recover the sums lawfully due ; he urged that the criminal process should not be used as a tool for debt collection or exact unlawful pressure on individuals involved in civil arrangements as that amounts to a violation of the principles of justice and article 50(2 ) of the Constitution and an abuse of the court process; It is his position that that the withdrawal reflects the spirit and letter of article 159 (2) (c )of the constitution which encourages courts to promote alternative forms of dispute resolution including reconciliation and out of court settlements.
He urged the to find the application to be devoid of merit as it was seeking to improperly revive a matter that was lawfully and conclusively addressed through the exercise of prosecutorial and judicial discretion.
The DPP filed written submissions and also highlighted the same.
Four issues were highlighted
1. the independence of the office of the DPP
2. whether criminal court should entertain commercial disputes
3. whether civil and criminal proceedings can proceed concurrently and
4. whether the withdrawal of the charge was justified.
On the independence of the DPP it was submitted that article 157 of the Constitution was applicable and the DPP relied on
Waweru Munyi Jackson v Director of Criminal Investigation & 4 others; Grace Wamboi Mukuha (Interested Party) [2021] KEHC 13587 (KLR)
The court held
30 I therefore find that the Court, should be slow in accepting invitations by litigants to interfere with the independent exercise of constitutional and statutory authority by state organs except in those cases where such organs and offices are acting ultra vires, outside the confines of reasonableness, procedural fairness, mala fides and in total disregard of the Doctrine of proportionality in decision making.
Each counsel also highlighted their submissions. M. Mutuku appeared for the applicant Mr. Kazungu for the state and Mr. Muthui for the accused in the lower court.
Mr. Mutuku for the applicant submitted that he relied on the interested party’s affidavit, section 193A of the Criminal Procedure Code.
He wondered how the DPP could turn around and say the things they have said in their submissions yet they were the ones who had approved the charges. He argued that it was upon the trial court to be satisfied that the application for withdrawal was not an abuse of the process of court he referred to article 157 of the constitution . He cited Wafula v Director of Public Prosecutions; Ethics and Anti-Corruption Commission & 2 others (Interested Parties) [2025] KESC 46 (KLR) on the proposition that :
The powers granted to the DPP are, however, not limitless and must be exercised within the boundaries set by article 157(11) of the Constitution which states that: “In exercising the powers conferred by this article, the Director of Public Prosecutions shall have regard to the public interest, the interests of the administration of justice and the need to prevent and avoid abuse of the legal process .”
Mr. Muthui for the interested party submitted in support of the application by the DPP and the decision of the court to accept the withdrawal under section 87 (a )of the CPC. He argued that the court was only required to determine whether the application met the test of article 157 (11) of the Constitution .He submitted that the relationship between the complainant and the accused person was purely commercial and that the complainant was using the criminal route to pile pressure on the accused to pay the balance of the 50,000 that was said to be interest upon the loan. He submitted that in the civil case the complainant told the court that the accused person had been paid but was his withholding the money .To that end the DPP the accuse person and the court agreed that this was a commercial agreement. He referred the court to Aperera v Officer Commanding Langata Police Station & 2 others; Maina (Interested Party) [2025] KEHC 4472 (KLR) and Republic v Leonard Date Sekento [2019] KEHC 9125 (KLR) and Waswa v Republic [2020] KESC 23 (KLR)
He further submitted that the advocate for the DPP was not required to agree with the advocate for the complainant and had the power to exercise its discretion and article 157 of the constitution.
Mr. Kazungu for the state cited article 157 of the Constitution.
He argued that counsel for the applicant had not cited the law that requires that notice be issued to the complainant when the office of the DPP was exercising its mandate under s. 87(a) of the CPC He submitted that there was no such requirement.
On whether there was a commercial dispute he submitted that the complainant lent the accused person the sum of Kenya shillings 150,000 and the amount was refunded to the applicant that the applicant was now demanding Kenya shillings 50,000 as interest.
He submitted that this was a commercial dispute where the complainant had invested 150,000 expecting a return of 200,000. He argued that in the criminal case the accused person was charged with fraud but at the point where the Kenyan shillings 150,000 was returned to the complainant the element of fraud was extinguished so that even if the case was to be prosecuted further, they would not have established fraudulent intent and they would have ended up with an acquittal of the accused . He referred to Kenneth Njiru Njagi v Republic [2021] KEHC 894 (KLR) where the court stated
From the above provision, it is clear that for the offence to be proved to the required legal standard, the prosecution must prove that the person accused had done the following:
i. Obtained anything capable of being stolen;
ii. By false pretences; and
iii. With an intention to defraud.
all the above three ingredients must be proved together in order to establish the offence. Proving one or either of them cannot suffice… “a representation as to a future event cannot support a charge of obtaining money by false pretences. See Abdallah V Republic, [1970] E.A. 657
On the issue of concurrent jurisdiction, he submitted that there is an exception and referred to Nga’ng’a versus DPP.
He argued that the office of the DPP could not be part of the abuse of the court process to put pressure on the accused person.
In rejoinder Mr. Mutuku submitted that there was connivance for the Prosecution to withdraw the matter on the hearing date that the prosecution had changed themselves from the custodians of the interests of the complainant to the custodians of the interest of the accused person.
I have carefully considered the application for review, the constitutional provisions and the provisions of the Victim Protection Act , the Penal and Criminal Procedure Codes.
The issue for determination was
whether the application for revision has any merit.
In seeking that answer I must answer the question
whether the trial court in arriving at its ruling was grossly misapprehended the law , and
whether the proceedings before it on the 19 th May 2025 were a travesty of justice ,a nullity and an abuse of the court process
The genesis of this application is the charge approved by the DPP and brought against the interested party , and the DPP’s application to with draw the same , and the courts exercise of its discretion to allow it.
It is common ground that the basis for the charge was an agreement between the applicant and the interested party. As can be seen from the agreement, the applicant invested the sum of Ksh 150,000 to the interested party and was to get profit of Ksh 50,000. After a Civil suit was filed to recover the money, the applicant obtained Judgment of Ksh 200000, of which the applicant paid Ksh 150,000 leaving a balance of Ksh 50,000.
From the written agreement it is evident that it was a contractual/business agreement I which the applicant ‘invested’ the sum of Ksh 150,000 anticipating a profit of Ksh 50,000. Two persons who entered into this agreement and when the payment was not forthcoming the investor /lender went to the police and reported that she had been defrauded of her money. The borrower was charged and before the criminal case was over the lender/investor obtained a valid judgment based on the same agreement for the total sum and part payment was made.
I agree with the applicant that there was no bar to the concurrent proceedings . s. 193A of the CPC states:
Concurrent criminal and civil proceedings Notwithstanding the provisions of any other written law, the fact that any matter in issue in any criminal proceedings is also directly or substantially in issue in any pending civil proceedings shall not be a ground for any stay, prohibition or delay of the criminal proceedings .
However, this law says that civil proceedings cannot be a reason to stay , prohibit or delay criminal proceedings. So, it is not just about parallel proceedings. It specifically prohibits the use of civil proceedings to delay the criminal proceedings. This was not the case here.
The trial court did not allow the withdrawal for the reason only that there were civil proceedings. The reason the court gave was that the applicant had a valid judgment, had received the sum she had invested from the accused person and the balance was the expected profit, which she could pursue through the civil proceedings.
How would the criminal proceedings have determined whether or not a profit was deserved in the matter? I do not agree with the applicant that the trial court misapprehended s. 193A of the CPC.
In addition, s. 87(a) of the CPC states
87. Withdrawal from prosecution in trials before subordinate courts
In a trial before a subordinate court a public prosecutor may, with the consent of the court or on the instructions of the Director of Public Prosecutions, at any time before judgment is pronounced, withdraw from the prosecution of any person , and upon withdrawal— (a) if it is made before the accused person is called upon to make his defence, he shall be discharged, but discharge of an accused person shall not operate as a bar to subsequent proceedings against him on account of the same facts;
A reading of s. 87(a) shows that the Prosecutor may withdraw from prosecuting a person. It does state that the prosecutor will with draw the charge. No, it says the prosecutor may choose not to prosecute a person , in two circumstances, either with the consent of the court or instructions of the DPP. The court, upon giving consent , it becomes mandatory to discharge the accused person, which discharge is not a bar to future charge on the same facts.
My understanding of this provision is that it is almost the criminal procedure equivalent of an application by counsel to cease acting for their client for whatever reason. The prosecutor sought to with draw from prosecuting the interested party herein because the complainant had received the money she had invested in his venture. In addition, when the matter was adjourned severally to allow for the payment of the money the applicant was represented in court and there was no objection to that application to pay the money. The only issue was the balance of the 50,000.
In my view the prosecution was right in making that application because according them the money that the applicant alleged to have been fraudulently obtained from him had been paid with her consent. The balance was not money she had paid but money she had hoped to make as a profit. The prosecution was entitled to draw the conclusion that armed with the agreement between the parties, the outcome of the civil suit the fraudulent aspect of the charge had melted away. I agree with the prosecution that persisted prosecution of the accused would have amounted to putting pressure on the accused to pay the ‘profit’.
Were the concerns of the victim considered as per the Victim’s protection Act?
S. 3. Provides for the Victim as a complainant
Where a victim is a complainant in a criminal case, the victim shall, either in person or through an advocate be entitled to—
(a)subject to the provisions of the Evidence Act (Cap. 80), adduce evidence that has been left out;
(b)give oral evidence or written submission
s. 4(2b) of the Act states
every victim is, as far as possible , given an opportunity to be heard and to respond before any decision affecting him or her is taken;
Further the Act states at s. 9 on the Rights during the trial process
(1)A victim has a right to—
(a)be present at their trial either in person or through a representative of their choice;
(b)have the trial begin and conclude without unreasonable delay;
(c)give their views in any plea bargaining;
(d)have any dispute that can be resolved by the application of law decided in a fair hearing before a competent authority or, where appropriate, another independent and impartial tribunal or body established by law;
(e)be informed in advance of the evidence the prosecution and defence intend to rely on, and to have reasonable access to that evidence;
(f)have the assistance of an interpreter provided by the State where the victim cannot understand the language used at the trial; and(g)be informed of the charge which the offender is facing in sufficient details.
(2) Where the personal interests of a victim have been affected, the Court shall—
(a)permit the victim's views and concerns to be presented and considered at stages of the proceedings determined to be appropriate by the Court; and
(b)ensure that the victim's views and concerns are presented in a manner which is not—
(i)prejudicial to the rights of the accused; or
(ii)inconsistent with a fair and impartial trial.
(3) The victim's views and concerns referred to in subsection (2) may be presented by the legal representative acting on their behalf
From the letter seeking the review counsel for the applicant replayed the exchange between the prosecution, the court and counsel for the applicant. The court gave that opportunity but the victim did not agree with the prosecution, and wanted the prosecution to proceed. I have perused and reproduced the record of the subordinate court and it is evident that the objections by counsel for the applicant were taken into consideration but the court did not agree with the applicant.
9.(2) clearly sets out ho
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IN THE HIGH COURT OF KENYA AT MAKUENI
HIGH COURT REVISION CASE NO E101 OF 2025
MAGDALENE NDUNGE MUSAU ……………………APPLICANT
VS
REPUBLIC……………………………………………………….DPP
AND
ANDERSON MUTHINI PETER …………………INTERESTED PARTY
RULING
In MCCR no E602 of 2024 Anderson Muthini Peter was charged with obtaining by false pretenses contrary to section 313 of the Penal Code The particulars were that on the 21 st day of November 2023 at 0902 hours at WOTE Township in Makueni Sub County within MAKUENl County with intent to defraud he obtained from Magdalene NDUNGE MUSAU the sum of Kenya shillings 150000 by falsely pretending that he had been given a tender to supply tyres at the MAKUENI County government and upon receiving the payment of the said supply he would refund the principal amount of Kenya Shillings 150,000 and interest of KSH 50,000 to the said Magdalene NDUNGE MUSAU,
Attached to the charge sheet was an agreement dated 21 st November 2023 between Peter Anderson and Magdalene Musau ‘to carry out a job at the County Government Ref No.1365003/2023/2024 for supply of tyres. The total contract amount is Ksh 404,500. Magdalene Musau of ID 25892856 has invested Ksh 150,000to receive profit of Ksh 50,000plus the principal capital”
The agreement is signed by both parties and a third party presumably the witness.
Plea was taken on 28 th October 2024 and the accused pleaded not guilty . The matter was fixed for hearing on 19/11/2024. On that day the accused person asked for one month to pay the whole amount. The prosecution had no objection. The matter was fixed for settlement on 17/12/2024. On that day Mr.Mutuku appeared for the complainant. The Prosecutor told the court that the accused was ready to settle .
The matter was fixed for hearing on 17/2/2025. Mr. Muthui appeared for the accused, Mr. Mutuku for the complainant.
Mr. Muthui told the court that the needed two weeks to make payment the proceed . The prosecution had no objection.
On 3 rd March 2025 Mr. Mutuku appeared for the complainant/ Mr. Muthui for the accused and he told the court that accused had paid Ksh 100,000. He asked for 60 days . Prosecution proffered 30 days .
On 15/4/2025 Mr. Muthui said that accused had paid Ksh 30,000 and sought a further 30,000. Mr. Mutuku opposed on the ground that the 30 days accused had asked for were over.
A hearing date was fixed for 19 th May 2025.
On that 19 th May 2025 Mr. Muthui told the court that accused had paid Ksh 150000. That there was a balance of Ksh 50,000as indicated in the charge sheet , that the matter was coming up for NTSC .
On that the Prosecutor applied to with draw under s. 87(a) of the CPC.
Mr. Mutuku opposed the application stating that he Ksh 200,000.
The Court stated as follows ” the prosecution has indicated that it does not wish to proceed with the matter as accused has paid Ksh 150000. The balance is Ksh 50,000 which is indicated as interest can be pursued in the civil matter in Makindu Small Claims Court for which the Complainant has a judgment in her favour. Counsel watching brief for the complainant is of a different opinion and prays that the matter proceeds for hearing. I agree with the prosecution and defence counsel that on one hand admits the receiving the sum of Ksh 150000 and on the other hand want to have accused tried. She has a decree in the civil matter and can easily pursue the interest of 50,000 indicated in particulars of the charge . I allow the application by the prosecution and proceed to withdraw this matter under s. 87(a) of the CPC.”
Aggrieved by this ruling the applicant through her counsel Mr. Mutuku filed an application for revision of this decision vide the letter dated 20 th May 2025 . The ‘accused ‘ joined the matter as an interested party.
In the letter counsel avers that they were instructed to watch brief in the matter and they also advised their client to lodge a civil claim which she did and they filed Makindu Small Claims Case number E001 of 2025 Magdalene and NDUNGEMUSAU versus Anderson PETER . This was on the basis that Criminal proceedings are not a bar to civil proceedings as the two are distinct and meant to achieve different purposes. As at the date of the request for revision they had already obtained a judgment in the civil case for the sum of Kenya shillings 200,000 plus s costs, and that the judgment was entered on admission by the accused of his own indebtedness to the applicant.
According to the application the criminal case came up several times for mention where the accused person promised to pay but he never repaid the full amount .That the trial court set the matter for hearing and a hearing date was set for 19 th of May 2025 as per the cause list of that date. That the complainant was present to testify in court. That counsel for the accused person made an application to the effect that the applicant accused had already paid 150,000 shillings to the complainant and the balance was Ksh 50,000 and which was of the interest and which could not be pursued in a criminal court .That in response the prosecutor supported the application and proceeded to make an application to withdraw the matter under section 87 (a) of the Criminal Procedure Code.
According to the applicant this was strange that Counsel for an accused person would make an application for withdrawal which was the mandate of the DPP under Article 157(6) of the Constitution, and that the manner in which the prosecutor supported the application led the applicant to believe that the ‘ matter had been compromised and that they were falling into a trap that had already been waylaid.’
The complainant took the position that CIVIL proceedings are not a bar to criminal proceedings and that the trial court was always aware of the existence of the civil proceedings even as it fixed the matter for hearing. On that account counsel for the complainant opposed the application for withdrawal of the case.
In the letter Counsel stated that the trial court suggested to the parties that insisting on proceeding with the hearing of the criminal case could boomerang on his client as there was a possibility of the accused being acquitted under section 210 of the CPC and filing a case for Malicious prosecution. Counsel took the position that it was clear to them that the accused had defrauded his client and never refunded the money and they had no such fear. The applicant disagrees with the court’s position that since the complainant had received part of the money of Ksh shillings 150,000 she could not push for the hearing of the criminal matter . stating that the charge sheet stated that total amount defrauded was Kenya shillings 200000 and the loan agreement provided by their client to the prosecution indicated the same sum of money.
That they were not surprised when they trial court delivered its ruling allowing the application by the DPP to withdraw the matter and the accused person was discharged. The applicant is of the view that the court grossly misapprehended the law , and the proceedings before it on the 19 th May 2025 were a travesty of justice ,a nullity and an abuse of the court process and it is on that basis that this application for revision has been brought seeking the following prayers ;
i. that the court do call and examine the record in Makueni MCCRC E602OF 2024 Republic versus Anderson Peter to satisfy itself on the correctness, legality and propriety of the proceedings and the orders issued on the 19 th may 2025;
ii. that the court does revise, vary and/or set aside the orders issued on 19 th May 2025 by the honorable Chief Magistrate and order that the trial proceeds to its logical conclusion before any other court of competent jurisdiction and further that the prosecution be conducted by any other officer of the DPP other than the current officer who made the application for withdrawal
The application is premised on Article 165(6) and (7) of the Constitution which are the provisions that grant the High Court Supervisory jurisdiction over subordinate courts and tribunals and sections 362, 364 and 365 of the Criminal Procedure Code which provide for the revision powers of the High Court.
The applicant cites section 362 which states that the high court has the power to call for and examine the record of any criminal proceedings before any subordinate court for the purpose of satisfying itself as to the correctness, legality, or propriety of any finding, sentence, or order recorded or passed and as to the regularity of any proceedings of any such subordinate court.
The applicant also cites article 157 (11) of the Constitution on the mandate of the DPP to have regard to public interest, the interest of the administration of justice ,and the need to prevent and avoid abuse of the legal process. It is his position that the applicant as the victim having come to court ready to testify was not informed in advance of the prosecution’s intention to withdraw the case and was ambushed by application for withdrawal.
The applicant cites section 4(2 )of the Victims Protection Act which requires the court or any administrative authority or person performing functions under the act to ensure that every victim is as far as possible is given an opportunity to be heard and to respond before any decision affecting him or her is taken. That this requirement is provided for under section 9(2) and 9(3) of the Victims Protection Act no. 17 of 2014. That the DPP was supposed to protect the interests of the complainant abdicated his responsibility and without prior notice to the complainant opted to withdraw the matter. That Article 158(7) of the Constitution empowers the DPP to discontinue a matter but they can only do so with the permission of the court. This provision is mirrored in section 87( a) of the criminal procedure Code hence the court was required to interrogate the merits of the application by the prosecution;
That it was incumbent on the trial court to ask itself the following questions. What was the nexus between the civil case and the criminal case? what if the accused had no assets capable of being attached to settle judgment? where was this line of reasoning when this matter was being previously mentioned by the trial court? did it just occur to the trial court that there was a civil case? what if the civil case had not been filed?
The applicant cited Republic v Peter Kibe & 7 others [2021] KEHC 3281 (KLR)
where, while dealing with a similar application I stated
“ 38. This guard against the whimsical application of this power is to be found at Article 157(11) of the Constitution provides that:
" In exercising the powers conferred by this Article, the Director of Public Prosecutions shall have regard to the public interest, the interests of the administration of justice and the need to prevent and avoid abuse of the legal process."
39. As for the subordinate courts obligation when dealing with such an application from the ODPP, the bar is set by the Constitution. The court would have to be satisfied that power is not being exercised outside its boundaries: public interest, interests of justice, prevention of abuse of the legal process. There is exercise of discretion by the court which discretion must be exercised judiciously taking into account the facts of each case and in particular whether the application abides by these provisions
It was submitted that the manner in which this application was allowed left the applicant wandering whether they were extraneous consideration for this proposition the applicant relied on ABRAHAM OTIENO v REPUBLIC [2011] KEHC 2213 (KLR) where the Judge rendered himself thus
One is left wondering whether truly the learned magistrate was alive to the tenets of law and the oath of his office when he convicted the appellant as aforesaid. Or did he do so upon extraneous considerations. Was he the grand master who was approached by external forces in order that he may invoke our criminal justice system unfairly to settle scores? From what is on record I have no doubt at all in my mind that the learned magistrate had no conviction at all in the judgment he crafted and eventually delivered as aforesaid. He must have been dancing to the tune of external forces. The magistrate was a senior judicial officer, of the rank of Ag Senior Principal Magistrate. There can be no justification for such scrappy and injudicious decision.
The applicant also relied on REPUBLIC v ENOCK WEKESA & another [2010] KEHC 4133 (KLR) which was cited in Kibe herein above.
The court was of the view
4. Surely if the case were to be terminated, should the complainant not be given a reason? Should the court that gives the leave to terminate the proceedings be a mere rubberstamp? Is asking questions that will satisfy the court that there is no abuse of process interference with the powers of the Director of Prosecutions? The criminal charges that are before the learned trial magistrate involve both the accused persons and the complainants who were the victims. By the trial Magistrate seeking for reasons so as to satisfy herself that there is no abuse of the legal process cannot be said to overstep on the powers of the Director of Prosecutions… The Constitution provides that public interest, the interest of justice and abuse of the legal process be protected, this is the duty of the trial court.
Anderson MUTHINI PETER filed a replying affidavit as the interested party in the matter.
He confirmed that he was charged with that offense of obtaining money by false pretenses and that he was not represented at the time of taking plea where he pleaded not guilty but requested time to refund the money in full. That the request was not objected to by the prosecution and that he made the proposal out of good faith and without any admission of guilt being mindful of the time and resources that could be saved by resolving a matter that was in essence a commercial disagreement outside protracted criminal proceedings. He deponed that he had legal advice that such a commercial transaction was governed by civil law and not by criminal liability under section 313 of the Penal Code. He deponed that all the proposals he made were voluntary, transparent and in full view of the court ,the prosecution as well as counsel for the complainant and that by 19 th of May 2025 he had already paid the sum of Kenya shillings 150,000 to the complainant leaving a sum of 50,000 which he remained willing to settle. That both the prosecution and the complainant acknowledged the payment. According to him the prosecution assessed the circumstances of the matter, recognized the civil character of the underlying dispute as well as his bona fide efforts to make good the alleged claim and applied section 87 (a) of the Criminal Procedure Code . Further that he is advised that the DPP acted in accordance with his constitutional mandate as per articles 157(6) (c ) And 157(8) 157(10) and 157(11) of the Constitution. is only triggered where the subordinate court has acted illegally, improperly and in a manner; That section 362 and 364 of the Criminal Procedure Code would be applicable in a case where there was illegality or impropriety and likely to miscarriage of justice but none had been demonstrated; That the complainant invoking these powers and this was a misuse of the court process and amounted to an effort to criminalize a private loan dispute having an active civil suit at Makindu law courts where he could recover the sums lawfully due ; he urged that the criminal process should not be used as a tool for debt collection or exact unlawful pressure on individuals involved in civil arrangements as that amounts to a violation of the principles of justice and article 50(2 ) of the Constitution and an abuse of the court process; It is his position that that the withdrawal reflects the spirit and letter of article 159 (2) (c )of the constitution which encourages courts to promote alternative forms of dispute resolution including reconciliation and out of court settlements.
He urged the to find the application to be devoid of merit as it was seeking to improperly revive a matter that was lawfully and conclusively addressed through the exercise of prosecutorial and judicial discretion.
The DPP filed written submissions and also highlighted the same.
Four issues were highlighted
1. the independence of the office of the DPP
2. whether criminal court should entertain commercial disputes
3. whether civil and criminal proceedings can proceed concurrently and
4. whether the withdrawal of the charge was justified.
On the independence of the DPP it was submitted that article 157 of the Constitution was applicable and the DPP relied on
Waweru Munyi Jackson v Director of Criminal Investigation & 4 others; Grace Wamboi Mukuha (Interested Party) [2021] KEHC 13587 (KLR)
The court held
30 I therefore find that the Court, should be slow in accepting invitations by litigants to interfere with the independent exercise of constitutional and statutory authority by state organs except in those cases where such organs and offices are acting ultra vires, outside the confines of reasonableness, procedural fairness, mala fides and in total disregard of the Doctrine of proportionality in decision making.
Each counsel also highlighted their submissions. M. Mutuku appeared for the applicant Mr. Kazungu for the state and Mr. Muthui for the accused in the lower court.
Mr. Mutuku for the applicant submitted that he relied on the interested party’s affidavit, section 193A of the Criminal Procedure Code.
He wondered how the DPP could turn around and say the things they have said in their submissions yet they were the ones who had approved the charges. He argued that it was upon the trial court to be satisfied that the application for withdrawal was not an abuse of the process of court he referred to article 157 of the constitution . He cited Wafula v Director of Public Prosecutions; Ethics and Anti-Corruption Commission & 2 others (Interested Parties) [2025] KESC 46 (KLR) on the proposition that :
The powers granted to the DPP are, however, not limitless and must be exercised within the boundaries set by article 157(11) of the Constitution which states that: “In exercising the powers conferred by this article, the Director of Public Prosecutions shall have regard to the public interest, the interests of the administration of justice and the need to prevent and avoid abuse of the legal process .”
Mr. Muthui for the interested party submitted in support of the application by the DPP and the decision of the court to accept the withdrawal under section 87 (a )of the CPC. He argued that the court was only required to determine whether the application met the test of article 157 (11) of the Constitution .He submitted that the relationship between the complainant and the accused person was purely commercial and that the complainant was using the criminal route to pile pressure on the accused to pay the balance of the 50,000 that was said to be interest upon the loan. He submitted that in the civil case the complainant told the court that the accused person had been paid but was his withholding the money .To that end the DPP the accuse person and the court agreed that this was a commercial agreement. He referred the court to Aperera v Officer Commanding Langata Police Station & 2 others; Maina (Interested Party) [2025] KEHC 4472 (KLR) and Republic v Leonard Date Sekento [2019] KEHC 9125 (KLR) and Waswa v Republic [2020] KESC 23 (KLR)
He further submitted that the advocate for the DPP was not required to agree with the advocate for the complainant and had the power to exercise its discretion and article 157 of the constitution.
Mr. Kazungu for the state cited article 157 of the Constitution.
He argued that counsel for the applicant had not cited the law that requires that notice be issued to the complainant when the office of the DPP was exercising its mandate under s. 87(a) of the CPC He submitted that there was no such requirement.
On whether there was a commercial dispute he submitted that the complainant lent the accused person the sum of Kenya shillings 150,000 and the amount was refunded to the applicant that the applicant was now demanding Kenya shillings 50,000 as interest.
He submitted that this was a commercial dispute where the complainant had invested 150,000 expecting a return of 200,000. He argued that in the criminal case the accused person was charged with fraud but at the point where the Kenyan shillings 150,000 was returned to the complainant the element of fraud was extinguished so that even if the case was to be prosecuted further, they would not have established fraudulent intent and they would have ended up with an acquittal of the accused . He referred to Kenneth Njiru Njagi v Republic [2021] KEHC 894 (KLR) where the court stated
From the above provision, it is clear that for the offence to be proved to the required legal standard, the prosecution must prove that the person accused had done the following:
i. Obtained anything capable of being stolen;
ii. By false pretences; and
iii. With an intention to defraud.
all the above three ingredients must be proved together in order to establish the offence. Proving one or either of them cannot suffice… “a representation as to a future event cannot support a charge of obtaining money by false pretences. See Abdallah V Republic, [1970] E.A. 657
On the issue of concurrent jurisdiction, he submitted that there is an exception and referred to Nga’ng’a versus DPP.
He argued that the office of the DPP could not be part of the abuse of the court process to put pressure on the accused person.
In rejoinder Mr. Mutuku submitted that there was connivance for the Prosecution to withdraw the matter on the hearing date that the prosecution had changed themselves from the custodians of the interests of the complainant to the custodians of the interest of the accused person.
I have carefully considered the application for review, the constitutional provisions and the provisions of the Victim Protection Act , the Penal and Criminal Procedure Codes.
The issue for determination was
whether the application for revision has any merit.
In seeking that answer I must answer the question
whether the trial court in arriving at its ruling was grossly misapprehended the law , and
whether the proceedings before it on the 19 th May 2025 were a travesty of justice ,a nullity and an abuse of the court process
The genesis of this application is the charge approved by the DPP and brought against the interested party , and the DPP’s application to with draw the same , and the courts exercise of its discretion to allow it.
It is common ground that the basis for the charge was an agreement between the applicant and the interested party. As can be seen from the agreement, the applicant invested the sum of Ksh 150,000 to the interested party and was to get profit of Ksh 50,000. After a Civil suit was filed to recover the money, the applicant obtained Judgment of Ksh 200000, of which the applicant paid Ksh 150,000 leaving a balance of Ksh 50,000.
From the written agreement it is evident that it was a contractual/business agreement I which the applicant ‘invested’ the sum of Ksh 150,000 anticipating a profit of Ksh 50,000. Two persons who entered into this agreement and when the payment was not forthcoming the investor /lender went to the police and reported that she had been defrauded of her money. The borrower was charged and before the criminal case was over the lender/investor obtained a valid judgment based on the same agreement for the total sum and part payment was made.
I agree with the applicant that there was no bar to the concurrent proceedings . s. 193A of the CPC states:
Concurrent criminal and civil proceedings Notwithstanding the provisions of any other written law, the fact that any matter in issue in any criminal proceedings is also directly or substantially in issue in any pending civil proceedings shall not be a ground for any stay, prohibition or delay of the criminal proceedings .
However, this law says that civil proceedings cannot be a reason to stay , prohibit or delay criminal proceedings. So, it is not just about parallel proceedings. It specifically prohibits the use of civil proceedings to delay the criminal proceedings. This was not the case here.
The trial court did not allow the withdrawal for the reason only that there were civil proceedings. The reason the court gave was that the applicant had a valid judgment, had received the sum she had invested from the accused person and the balance was the expected profit, which she could pursue through the civil proceedings.
How would the criminal proceedings have determined whether or not a profit was deserved in the matter? I do not agree with the applicant that the trial court misapprehended s. 193A of the CPC.
In addition, s. 87(a) of the CPC states
87. Withdrawal from prosecution in trials before subordinate courts
In a trial before a subordinate court a public prosecutor may, with the consent of the court or on the instructions of the Director of Public Prosecutions, at any time before judgment is pronounced, withdraw from the prosecution of any person , and upon withdrawal— (a) if it is made before the accused person is called upon to make his defence, he shall be discharged, but discharge of an accused person shall not operate as a bar to subsequent proceedings against him on account of the same facts;
A reading of s. 87(a) shows that the Prosecutor may withdraw from prosecuting a person. It does state that the prosecutor will with draw the charge. No, it says the prosecutor may choose not to prosecute a person , in two circumstances, either with the consent of the court or instructions of the DPP. The court, upon giving consent , it becomes mandatory to discharge the accused person, which discharge is not a bar to future charge on the same facts.
My understanding of this provision is that it is almost the criminal procedure equivalent of an application by counsel to cease acting for their client for whatever reason. The prosecutor sought to with draw from prosecuting the interested party herein because the complainant had received the money she had invested in his venture. In addition, when the matter was adjourned severally to allow for the payment of the money the applicant was represented in court and there was no objection to that application to pay the money. The only issue was the balance of the 50,000.
In my view the prosecution was right in making that application because according them the money that the applicant alleged to have been fraudulently obtained from him had been paid with her consent. The balance was not money she had paid but money she had hoped to make as a profit. The prosecution was entitled to draw the conclusion that armed with the agreement between the parties, the outcome of the civil suit the fraudulent aspect of the charge had melted away. I agree with the prosecution that persisted prosecution of the accused would have amounted to putting pressure on the accused to pay the ‘profit’.
Were the concerns of the victim considered as per the Victim’s protection Act?
S. 3. Provides for the Victim as a complainant
Where a victim is a complainant in a criminal case, the victim shall, either in person or through an advocate be entitled to—
(a)subject to the provisions of the Evidence Act (Cap. 80), adduce evidence that has been left out;
(b)give oral evidence or written submission
s. 4(2b) of the Act states
every victim is, as far as possible , given an opportunity to be heard and to respond before any decision affecting him or her is taken;
Further the Act states at s. 9 on the Rights during the trial process
(1)A victim has a right to—
(a)be present at their trial either in person or through a representative of their choice;
(b)have the trial begin and conclude without unreasonable delay;
(c)give their views in any plea bargaining;
(d)have any dispute that can be resolved by the application of law decided in a fair hearing before a competent authority or, where appropriate, another independent and impartial tribunal or body established by law;
(e)be informed in advance of the evidence the prosecution and defence intend to rely on, and to have reasonable access to that evidence;
(f)have the assistance of an interpreter provided by the State where the victim cannot understand the language used at the trial; and(g)be informed of the charge which the offender is facing in sufficient details.
(2) Where the personal interests of a victim have been affected, the Court shall—
(a)permit the victim's views and concerns to be presented and considered at stages of the proceedings determined to be appropriate by the Court; and
(b)ensure that the victim's views and concerns are presented in a manner which is not—
(i)prejudicial to the rights of the accused; or
(ii)inconsistent with a fair and impartial trial.
(3) The victim's views and concerns referred to in subsection (2) may be presented by the legal representative acting on their behalf
From the letter seeking the review counsel for the applicant replayed the exchange between the prosecution, the court and counsel for the applicant. The court gave that opportunity but the victim did not agree with the prosecution, and wanted the prosecution to proceed. I have perused and reproduced the record of the subordinate court and it is evident that the objections by counsel for the applicant were taken into consideration but the court did not agree with the applicant.
9.(2) clearly sets out ho
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