1. Before this court for determination is a petition of appeal dated 30th October 2024. The Application seeks leave against the ruling and subsequent acquittal of the appellant delivered on 17th October 2024. The appellant contended that the Learned Trial Magistrate erred in law and fact in acquitting the accused person on several grounds ; that the ruling cited Criminal Case MCCR/E516 of 2021, whereas the appellant’s mater was Criminal Case No. MCCR/E516 of 2023; The Learned Trial Magistrate failed to consider evidence adduced in court in the form of recorded conversation, which had been reduced into writing and certified as true translation, of the conversation between the Appellant and the accused, which complied with the provisions of Section 78A (1) of the Evidence Act as read with Section 78 (2) of the Evidence Act; the court failed to take into account the intimidation and harassment of the Appellant by the police during the trial process, including his arrest at Malili Police Station where he was allegedly coerced to withdraw the suit; by disregarding glaring inconsistencies and inadequacies in the prosecution evidence; and misapplied the issue of corroboration, despite the written evidence being sufficient and corroborated by witnesess; failing to consider the accused person’s propensity to issue threats to kill, as evidenced by Criminal Case Number:MCCR/E309/2023 Republic versus Stephen Mua Kivondo, where similar conduct was reported; by failing to evaluate the entire evidence and particularly neglecting the Appellant’s evidence, and acquitted the accused person against the weight of the evidence presented in court.
2. The Appellant prays that the acquittal of the accused person be set aside and the matter heard de novo.
3. The Respondent opposed the application through a Replying Affidavit sworn on 3rd February 2025, in which he depones that the Appellant is a vexatious litigant motivated by ill will, misusing the criminal justice system to punish him, through unfounded complaints. He further avers that he is the Appellant’s younger brother and that the Appellant resides in the United States of America and only visits Kenya occasionally.
4. On ground one of the intended appeal, the Respondent argues that the Appellant relies on a mere typographical error in the year of the criminal case. He maintains that the parties were correctly captured as Republic versus Stephen Kivondo Mua, and that the trial court’s analysis clearly related to the Respondent. He contends that no miscarriage of justice arose from the typographical error, which did not affect substance of the case.
5. On ground two, the Respondent asserts that no evidence described as “recorded and reduced into writing” was presented before the trial court. He argues that the Appellant seeks a retrial so as to introduce additional evidence and fill gaps that were exposed in the prosecution’s case.
6. Regarding ground three, he denies the allegations of intimidation and harassment, stating that the claims are malicious and irrelevant. He adds that the circumstances surrounding the Appellant’s arrest are matters in the public domain.
7. On ground four, he notes that the Appellant has conceded that the prosecution’s evidence contained glaring inconsistencies and inadequacies and argues that the present appeal is an attempt to manufacture evidence and cure deficiencies in the prosecution’s case.
8. With respect to ground five, he reiterates the alleged written evidence was not specific, and that the trial court correctly observed that purported witnesses were not present when the alleged threats were made, and therefore the court cannot be faulted for its findings.
9. On ground six, the Respondent addresses the allegation of a propensity to threaten to kill, noting that Criminal Case No. 309 of 2023 arose from estate property disputes instigated by the appellant through his workers. He states that the matter, was withdrawn for want of prosecution and has no bearing on the present case. He contends that the Appellant is attempting to settle personal scores under the guise of pursuing justice.
10. Regarding grounds 7 and 8, the Respondent depones that these grounds lack merit, as the trial court analysed the evidence on record and concluded that there were glaring inconsistencies and inadequacies in the prosecution’s case, an observation conceded by the Appellant in ground 4 of the proposed petition of appeal. He therefore contends that the trial court cannot be faulted for the acquittal. The Respondent further states that the Appellant and his siblings are engaged in a highly contested succession dispute concerning the estate of their late mother in Machakos High Court Succession Cause No. E042 of 2023, Estate of Dorothy Justus Kivondo. He avers that in the said succession cause, the Applicant seeks appointment as the sole administrator in a family comprising six children and allegedly targets any sibling who does not support his position as self-proclaimed sole administrator. He further asserts that the Appellant has taken control of prime estate properties and commenced multiple construction projects thereon before being restrained by the court, and that construction allegedly continues in defiance of court orders. The Respondent maintains that the complaints raised by the Appellant during the criminal trial arose from the succession dispute and are therefore collateral to the criminal proceedings.
11. The Respondent enumerates several actions allegedly undertaken by the Appellant against family members and others including filing a case against his sister, Lilian Ndinda Mua, at her place of work; lodging a complaint at Katuaa Police Station against his sister Lucy Mutheu alleging theft of livestock and issuing a demand letter dated 1st December 2024 through Clement Kathangu Associates & Advocates alleging defamation; filing a complaint against his sister, Dr. Margaret Mbindyo, at the university where she lectures and similarly issuing a defamation demand letter dated 1st December 2024 through the same advocates; lodging a complaint against the area chief with the Cabinet Secretary for the Ministry of Interior concerning issuance of a succession letter; filing and subsequently withdrawing a criminal case against the Respondent; issuing an eviction notice against the Respondent in relation to the estate before being restrained by the court; and allegedly threatening the Respondent on several occasions should he fail to support the Applicant’s bid to be sole administrator.
12. On the basis of the foregoing, the Respondent urges this Court not to intervene and to decline the leave sought.
The petition was canvassed by written submissions. Complainant/ Appellant’s Submissions
13. In his submissions, the Applicant sets out the background noting that he and the accused are brothers. He states that prior to the institution of the criminal proceedings, the accused allegedly engaged in unlawful conduct, including issuing threats against him and against workers at their family home. The Appellant avers that he recorded threatening phone conversations which were reduced into writing through a certified translation agency and that these threats formed the basis of the complaint leading to the prosecution.
14. The Appellant alleges that during the pendency of the trial, his elder sisters, Lucy Mutheu Kihi and Dr. Margret Mbindyo conspired with prosecution authorities in Machakos to compromise the matter. He claims that on or about 14th March 2024, he witnessed Lucy Mutheu Kihi bribing the Chief Prosecutor in Machakos and that Dr. Mbindyo financed the alleged bribery. According to him, the prosecutor had already directed that the case be dismissed. He states that after protesting the alleged illegality and consulting with the lead prosecuting officer, he was permitted to testify, but maintains that the case had already been compromised.
15. The Appellant further asserts that he faced intimidation and harassment during the trial process, including threats to his life allegedly made by the Officer Commanding Police Post at Malili and that he was arrested on the same day the alleged compromise occurred. He contends that the accused’s advocate, Mr. Douglas Muumbi, engaged in ex parte communications with the Chief Prosecutor to advance a misleading narrative and defamed him by alleging that he had an illicit relationship with the prosecuting officer, Ms. Noreen. He in turn accuses the said prosecuting officer of participating in a bribery scheme to facilitate the accused’s release from custody.
16. He also alleges professional misconduct on the part of advocates who represented or interacted with him, including Ms. Joy Kwamboka and Mr. David Manyolo, whom he claims were compromised and have since been reported to the Law Society of Kenya. The Applicant defines what he terms an “organized scheme” as a coordinated series of acts designed to deceive or defraud, potentially involving conspiracy, misuse of prosecutorial authority, corruption, suppression of evidence and manipulation of legal proceedings. He contends that such a scheme occurred in his case and influenced the dismissal of the charges.
17. The Appellant identified several issues for determination, including
a. whether the alleged organized scheme and the dismissal contravened the Advocates Act and Kenyan law;
b. whether courts can advance or protect an organized conspiracy to shield unlawful conduct such as threats to kill;
c. whether a court can ignore recorded evidence after prosecutorial officers have allegedly been compromised;
d. whether officers of the court can advance improper conduct amounting to lawfare; and
e. whether public corruption played a role in the dismissal of the case.
18. In support of his arguments, the Appellant discusses prosecutorial power and misconduct, the constitutional guarantees under Article 29 of the Constitution of Kenya on security of the person and protection from violence and the legal framework governing accountability of prosecutors and police officers. He references the role of the Director of Public Prosecutions under Article 158 of the Constitution, the Office of the Director of Public Prosecutions guidelines, the Advocates Complaints Commission, the Law Society of Kenya, the Ethics and Anti-Corruption Commission, the Independent Policing Oversight Authority (IPOA), the Internal Affairs Unit under the National Police Service Act, the Commission on Administrative Justice, and the Kenya National Commission on Human Rights.
19. He states that he lodged complaints with several of these oversight bodies. He further notes that IPOA declined to investigate his complaint pursuant to section 26 of the Independent Policing Oversight Authority Act on the basis that the matter was pending before the court in Criminal Appeal No. E098 of 2024 and advised him to raise the issues before the appellate court. The Applicant contends that the recorded evidence of threats was ignored by the trial court despite being reduced into writing and certified and that the acquittal was the product of corruption, abuse of office, and manipulation of the legal process. He elaborates on the concept of “lawfare,” which he describes as the misuse of legal processes to achieve strategic ends, silence or harass an opponent, or undermine justice and alleges that such tactics were deployed against him by family members and certain advocates.
20. On the question of public corruption, he submits that bribery, influence peddling, and abuse of office can affect prosecutorial decisions and judicial outcomes, and that in his case, corruption influenced the dismissal of the charges. He maintains that despite the alleged compromise, the strength of his evidence warranted a conviction.
21. In conclusion, the Appellant prays that the acquittal be set aside, that the matter be heard de novo and that summons issue against persons adversely mentioned so that the court may determine their alleged involvement.
Accused/Respondent’s Submissions
22. The Respondent opposes the intended appeal and the prayer for leave, contending that there is no proper application before the Court and that the proceedings are malicious, misconceived, and intended to settle personal scores arising from a family succession dispute.
23. At the outset, the Respondent notes that the intended Appellant filed a Petition of Appeal dated 30th October 2024, within which he included a prayer seeking leave to appeal against the ruling and acquittal delivered on 17th October 2024. The Respondent submits that although the Appellant has set out grounds challenging the trial court’s decision, he has not filed a substantive application for leave supported by an affidavit, nor has he cited the legal provisions under which such leave is sought. It is argued that leave cannot be sought within a petition of appeal and that, until leave is granted, a petition of appeal cannot properly be filed. The Respondent therefore urges the Court to strike out the purported application with costs for failure to comply with procedural requirements.
24. While acknowledging Article 159(2)(d) of the Constitution, the Respondent submits that the provision is not a cure for all procedural deficiencies. The Respondent placed reliance on the decision of the Supreme Court in Law Society of Kenya v Centre for Human Rights & Democracy & 12 Others Petition No. 14 of 2013, where the Court held that litigants must comply with applicable procedural rules and that Article 159(2)(d) is not a panacea for procedural shortfalls. The Respondent also cites Patricia Cherotich Sawe v Independent Electoral & Boundaries Commission & 4 Others [2015] eKLR for the proposition that Article 159(2)(d) cannot be invoked to bypass jurisdictional prerequisites.
25. On the merits of the grounds of appeal, the Respondent characterizes the Appellant as a vexatious litigant motivated by ill will who has repeatedly sought to use the criminal justice system to punish him. He explains that the parties are siblings and that the Appellant resides in the United States of America and only visits Kenya occasionally.
26. Regarding ground one, the Respondent submits that the Appellant is relying on a mere typographical error in the year of the case number, where Criminal Case No. E516 of 2021 was indicated instead of E516 of 2023. He contends that the parties were correctly captured as Republic versus Stephen Kivondo Mua and that the judgment clearly related to him. He submits that no miscarriage of justice arose from the typographical error, which did not affect the substance of the case.
27. With respect to grounds two, the Respondent denies that any recorded conversation reduced into writing was presented before the trial court. He contends that the Appellant is attempting to introduce fresh evidence through the back door to fill gaps in the prosecution’s case, which the court should not permit.
28. On ground three, he similarly denies the existence of evidence of intimidation or harassment as alleged, describing the claims as malicious and irrelevant to the proceedings before the trial court. On ground four, the Respondent points out that the Appellant himself concedes that there were glaring inconsistencies and inadequacies in the prosecution’s case. He argues that, in light of such deficiencies, the trial court had no option but to acquit the accused.
29. Regarding ground six, the Respondent addresses the reference to Criminal Case No. 309 of 2023, in which he had allegedly been charged with threatening to kill farm workers. He states that in that matter the Appellant was the complainant through his workers; that the case arose from disagreements over the use of estate property; that it was withdrawn for want of evidence; and that it bore no relevance to the case that was before the trial court. He maintains that the Appellant is seeking to rely on a withdrawn case to prejudice the court against him.
30. On grounds seven and eight, the Respondent submits that the trial court properly analyzed the entire evidence and concluded that the prosecution had failed to establish a case to answer due to glaring inconsistencies and inadequacies. He maintains that the trial court cannot be faulted for acquitting the accused where the evidence was insufficient.
31. The Respondent further places the dispute within the context of an ongoing and highly contested succession cause, namely Machakos High Court Succession Cause No. E042 of 2023, Estate of Dorothy Justus Kivondo. He asserts that the Appellant seeks to be the sole administrator of the estate, in a family of six children, and targets siblings who do not support his position. He alleges that the Appellant has taken control of estate properties and commenced multiple constructions before being stopped by the court. He lists several complaints and suits filed by the Appellant against his siblings and others, The Respondent contends that these actions demonstrate a pattern of personal vendetta and misuse of the legal process.
32. On the question whether there are grounds to assume the mandate of the Director of Public Prosecutions (DPP), the Respondent relies on Article 157(6), (10) and (11) of the Constitution, emphasizing that prosecutorial powers are vested in the DPP, who exercises such powers independently and without direction or control from any person. He submits that the Appellant has not demonstrated that he requested the DPP to review or appeal the acquittal and that such request was refused. He argues that the Appellant has not met the threshold for instituting or pursuing a private prosecution. In that regard, reliance is placed on Rufus Riddle Barger v Brian John [1959] EA 8 where the court stated that a private prosecution is only legitimate where it serves as a remedy against culpable inertia or partiality by the public prosecuting authority. The Respondent also cites Rolloh v Director of Public Prosecutions & 5 Others (Criminal Appeal E017 of 2022) [2023] KEHC 17450 (KLR) (11 May 2023) (Judgment), in which the court restated the principles for private prosecution as set out in Floriculture International Limited v Attorney General in Nairobi High Court Misc. Civil Application No. 114 of 1997, including the need to demonstrate that the DPP declined to act, that such refusal was unreasonable, that there is a likelihood of failure of justice, that the applicant is acting in good faith, and that grave social evil would occur unless leave is granted. He further refers to the statutory framework under the Office of the Director of Public Prosecutions Act and Section 88 of the Criminal Procedure Code regarding private prosecutions and the power of the DPP to take over or discontinue such proceedings. The Respondent contends that the Appellant has not satisfied these criteria and is instead attempting to usurp the DPP’s mandate. He maintains that the prosecution did not appeal the acquittal because the evidence was insufficient, as correctly found by the trial court.
33. On the issue of malice, the Respondent argues that the proposed proceedings are brought in bad faith and for ulterior purposes. He submits that the Appellant’s concession regarding inconsistencies in the prosecution’s case underscores the absence of a prima facie case. He relies on Republic v DPP & Another Ex Parte Chamanlal Vrajlal Kamani & Others [2015] eKLR for the proposition that a prudent prosecutor must demonstrate a reasonable and probable cause for prosecution, failing which the prosecution would be malicious and actionable. He further cites Rosemary Wanja Mwagiru & 2 Others v Attorney General & 2 Others [2013] eKLR for the principle that the criminal process must not be used to settle personal scores, harass or oppress and that courts ought to intervene where proceedings are instituted for purposes other than the genuine enforcement of law and order.
34. Finally, the Respondent associates himself with the reasoning in Republic v Jones Mutua Anthony & 3 others [2019] eklr, where the Court emphasized that an accused should not be placed on his defence merely to clear doubts or for the sake of hearing what he has to say; the prosecution bears the burden of proving its case beyond reasonable doubt, and where it fails, the court must acquit.
35. In conclusion, the Respondent submits that the trial court correctly found that there was no evidence to place him on his defence and properly acquitted him. He prays that the purported application for leave be dismissed with costs, on the basis that it is procedurally defective, unsupported by the law governing private prosecution, and motivated by malice arising from a family succession dispute rather than the genuine pursuit of justice.
Analysis and determination
36. I have considered the present petition of appeal; the order being sought and the submissions filed by the parties herein. The issue for determination is whether the prayer for leave to appeal against the acquittal delivered on 17th October 2024 should be granted to the Appellant.
37. The impugned decision resulted in the acquittal of the accused person. Under Section 348A of the Criminal Procedure Code, the Director of Public Prosecutions may appeal to the High Court from an acquittal on matters of fact and law. The provision does not expressly confer a similar automatic right of appeal to a complainant. It follows that where a complainant seeks to challenge an acquittal, such recourse is not as of right but must be grounded within the broader statutory and constitutional framework governing criminal prosecutions and private prosecutions.
38. Article 157(6) of the Constitution of Kenya vests State prosecutorial powers in the Director of Public Prosecutions (DPP), including the power to institute and undertake criminal proceedings. Article 157(10) further guarantees the independence of the DPP, while Article 157(11) requires the DPP, in exercising prosecutorial power, to have regard to public interest, the interests of the administration of justice and the need to prevent abuse of the legal process.
39. The Appellant’s case is that the acquittal was tainted by prosecutorial misconduct, corruption, suppression of evidence and intimidation, and that the trial court failed to properly evaluate the evidence, including recorded conversations allegedly reduced into writing. He contends that the criminal process was manipulated and that the interests of justice require that he be granted leave to appeal and the matter be heard de novo.
40. The Respondent on the other hand, contends that the application is procedurally incompetent; that leave cannot be sought within a petition of appeal; that the Appellant has not demonstrated that the DPP declined to appeal or acted with culpable inertia; and that the intended appeal is motivated by malice arising from a family succession dispute. He further argues that the trial court correctly found the prosecution evidence inconsistent and inadequate and that there was no miscarriage of justice.
41. In determining whether leave should be granted, this Court must be guided by the principles governing private prosecutions and appellate intervention in acquittals. Kenyan jurisprudence has consistently held that private prosecutions are exceptional in nature and must not be permitted to undermine the constitutional mandate of the DPP. In Floriculture International Limited & others v Attorney General Nairobi High Court Miscellaneous Civil Application No. 114 of 1997, the High Court outlined the principles that a private prosecution is only justified where it serves as a remedy against culpable inertia or partially on the part of the public prosecuting authority. The court held that an applicant must demonstrate that the DPP has declined to act, that such refusal is unreasonable, that there is a likelihood of failure of justice unless leave is granted, and that the applicant is acting in good faith.
42. Although the present matter concerns leave to appeal rather than institution of a private prosecution ab initio, the underlying rationale is analogous. An appeal against an acquittal is a significant step. It engages not only the rights of the complainant but also the constitutional protections afforded to an accused person, including the presumption of innocence and the principle of finality of criminal proceedings.
43. The material placed before this court does not demonstrate that the Appellant formally sought a review or appeal by the Director of Public Prosecutions and that such request was refused. There is no evidence that the DPP declined to act or institute or conduct criminal appeal proceedings. Allegations of corruption, intimidation and prosecutorial compromise, though serious, remain unsubstantiated within the evidentiary material presented in support of the present prayer for leave. Indeed, many of those allegations fall within the investigative mandate of oversight bodies established by statute and cannot be conclusively determined within the limited scope of an application for leave.
44. Further, the Appellant himself acknowledges inconsistencies and inadequacies in the prosecution case before the trial court. The Respondent’s submission that the acquittal followed the prosecution’s failure to establish a prima facie case is borne out by the record as described in the pleadings. It is trite that an appellate court will not lightly interfere with an acquittal unless it is shown that the trial court misdirected itself on the law, failed to consider material evidence or reached a conclusion that was plainly unreasonable. Leave to appeal should not be granted merely because the complainant is dissatisfied with the outcome.
45. This court is also alive to the constitutional command under Article 159(2)(d) that justice shall be administered without undue regard to procedural technicalities. However, where a litigant seeks to step into a prosecutorial space constitutionally reserved for the DPP, the court must be satisfied that the statutory and jurisprudential thresholds have been met.
46. Having weighed the both parties’ arguments, I am not persuaded that the Appellant has demonstrated exceptional circumstances warranting the grant of leave. There is no sufficient material before this court to establish that the DPP failed to act in circumstances justifying judicial intervention nor that a grave miscarriage of justice will occur unless leave is granted. The allegations of conspiracy and corruption, while serious, have not been substantiated to the threshold required to displace the presumption of regularity attaching to judicial and prosecutorial acts. Equally, the grounds advanced largely challenge the evaluation of evidence by the trial court, a matter that, in the absence of a demonstrated error of law or principle does not automatically warrant leave.
47. In the circumstances, and bearing in mind the need to safeguard both the integrity of the criminal justice system and the rights of the accused person who has been acquitted, I find that the Appellant has not met the legal threshold for the grant of leave to appeal.
48. Accordingly, the prayer for leave is declined. The Respondent is awarded costs of Kshs 50,000/-
Orders accordingly.
Delivered, Dated and Signed this 6th day of March 2026
2. The Appellant prays that the acquittal of the accused person be set aside and the matter heard de novo.
3. The Respondent opposed the application through a Replying Affidavit sworn on 3rd February 2025, in which he depones that the Appellant is a vexatious litigant motivated by ill will, misusing the criminal justice system to punish him, through unfounded complaints. He further avers that he is the Appellant’s younger brother and that the Appellant resides in the United States of America and only visits Kenya occasionally.
4. On ground one of the intended appeal, the Respondent argues that the Appellant relies on a mere typographical error in the year of the criminal case. He maintains that the parties were correctly captured as Republic versus Stephen Kivondo Mua, and that the trial court’s analysis clearly related to the Respondent. He contends that no miscarriage of justice arose from the typographical error, which did not affect substance of the case.
5. On ground two, the Respondent asserts that no evidence described as “recorded and reduced into writing” was presented before the trial court. He argues that the Appellant seeks a retrial so as to introduce additional evidence and fill gaps that were exposed in the prosecution’s case.
6. Regarding ground three, he denies the allegations of intimidation and harassment, stating that the claims are malicious and irrelevant. He adds that the circumstances surrounding the Appellant’s arrest are matters in the public domain.
7. On ground four, he notes that the Appellant has conceded that the prosecution’s evidence contained glaring inconsistencies and inadequacies and argues that the present appeal is an attempt to manufacture evidence and cure deficiencies in the prosecution’s case.
8. With respect to ground five, he reiterates the alleged written evidence was not specific, and that the trial court correctly observed that purported witnesses were not present when the alleged threats were made, and therefore the court cannot be faulted for its findings.
9. On ground six, the Respondent addresses the allegation of a propensity to threaten to kill, noting that Criminal Case No. 309 of 2023 arose from estate property disputes instigated by the appellant through his workers. He states that the matter, was withdrawn for want of prosecution and has no bearing on the present case. He contends that the Appellant is attempting to settle personal scores under the guise of pursuing justice.
10. Regarding grounds 7 and 8, the Respondent depones that these grounds lack merit, as the trial court analysed the evidence on record and concluded that there were glaring inconsistencies and inadequacies in the prosecution’s case, an observation conceded by the Appellant in ground 4 of the proposed petition of appeal. He therefore contends that the trial court cannot be faulted for the acquittal. The Respondent further states that the Appellant and his siblings are engaged in a highly contested succession dispute concerning the estate of their late mother in Machakos High Court Succession Cause No. E042 of 2023, Estate of Dorothy Justus Kivondo. He avers that in the said succession cause, the Applicant seeks appointment as the sole administrator in a family comprising six children and allegedly targets any sibling who does not support his position as self-proclaimed sole administrator. He further asserts that the Appellant has taken control of prime estate properties and commenced multiple construction projects thereon before being restrained by the court, and that construction allegedly continues in defiance of court orders. The Respondent maintains that the complaints raised by the Appellant during the criminal trial arose from the succession dispute and are therefore collateral to the criminal proceedings.
11. The Respondent enumerates several actions allegedly undertaken by the Appellant against family members and others including filing a case against his sister, Lilian Ndinda Mua, at her place of work; lodging a complaint at Katuaa Police Station against his sister Lucy Mutheu alleging theft of livestock and issuing a demand letter dated 1st December 2024 through Clement Kathangu Associates & Advocates alleging defamation; filing a complaint against his sister, Dr. Margaret Mbindyo, at the university where she lectures and similarly issuing a defamation demand letter dated 1st December 2024 through the same advocates; lodging a complaint against the area chief with the Cabinet Secretary for the Ministry of Interior concerning issuance of a succession letter; filing and subsequently withdrawing a criminal case against the Respondent; issuing an eviction notice against the Respondent in relation to the estate before being restrained by the court; and allegedly threatening the Respondent on several occasions should he fail to support the Applicant’s bid to be sole administrator.
12. On the basis of the foregoing, the Respondent urges this Court not to intervene and to decline the leave sought.
The petition was canvassed by written submissions. Complainant/ Appellant’s Submissions
13. In his submissions, the Applicant sets out the background noting that he and the accused are brothers. He states that prior to the institution of the criminal proceedings, the accused allegedly engaged in unlawful conduct, including issuing threats against him and against workers at their family home. The Appellant avers that he recorded threatening phone conversations which were reduced into writing through a certified translation agency and that these threats formed the basis of the complaint leading to the prosecution.
14. The Appellant alleges that during the pendency of the trial, his elder sisters, Lucy Mutheu Kihi and Dr. Margret Mbindyo conspired with prosecution authorities in Machakos to compromise the matter. He claims that on or about 14th March 2024, he witnessed Lucy Mutheu Kihi bribing the Chief Prosecutor in Machakos and that Dr. Mbindyo financed the alleged bribery. According to him, the prosecutor had already directed that the case be dismissed. He states that after protesting the alleged illegality and consulting with the lead prosecuting officer, he was permitted to testify, but maintains that the case had already been compromised.
15. The Appellant further asserts that he faced intimidation and harassment during the trial process, including threats to his life allegedly made by the Officer Commanding Police Post at Malili and that he was arrested on the same day the alleged compromise occurred. He contends that the accused’s advocate, Mr. Douglas Muumbi, engaged in ex parte communications with the Chief Prosecutor to advance a misleading narrative and defamed him by alleging that he had an illicit relationship with the prosecuting officer, Ms. Noreen. He in turn accuses the said prosecuting officer of participating in a bribery scheme to facilitate the accused’s release from custody.
16. He also alleges professional misconduct on the part of advocates who represented or interacted with him, including Ms. Joy Kwamboka and Mr. David Manyolo, whom he claims were compromised and have since been reported to the Law Society of Kenya. The Applicant defines what he terms an “organized scheme” as a coordinated series of acts designed to deceive or defraud, potentially involving conspiracy, misuse of prosecutorial authority, corruption, suppression of evidence and manipulation of legal proceedings. He contends that such a scheme occurred in his case and influenced the dismissal of the charges.
17. The Appellant identified several issues for determination, including
a. whether the alleged organized scheme and the dismissal contravened the Advocates Act and Kenyan law;
b. whether courts can advance or protect an organized conspiracy to shield unlawful conduct such as threats to kill;
c. whether a court can ignore recorded evidence after prosecutorial officers have allegedly been compromised;
d. whether officers of the court can advance improper conduct amounting to lawfare; and
e. whether public corruption played a role in the dismissal of the case.
18. In support of his arguments, the Appellant discusses prosecutorial power and misconduct, the constitutional guarantees under Article 29 of the Constitution of Kenya on security of the person and protection from violence and the legal framework governing accountability of prosecutors and police officers. He references the role of the Director of Public Prosecutions under Article 158 of the Constitution, the Office of the Director of Public Prosecutions guidelines, the Advocates Complaints Commission, the Law Society of Kenya, the Ethics and Anti-Corruption Commission, the Independent Policing Oversight Authority (IPOA), the Internal Affairs Unit under the National Police Service Act, the Commission on Administrative Justice, and the Kenya National Commission on Human Rights.
19. He states that he lodged complaints with several of these oversight bodies. He further notes that IPOA declined to investigate his complaint pursuant to section 26 of the Independent Policing Oversight Authority Act on the basis that the matter was pending before the court in Criminal Appeal No. E098 of 2024 and advised him to raise the issues before the appellate court. The Applicant contends that the recorded evidence of threats was ignored by the trial court despite being reduced into writing and certified and that the acquittal was the product of corruption, abuse of office, and manipulation of the legal process. He elaborates on the concept of “lawfare,” which he describes as the misuse of legal processes to achieve strategic ends, silence or harass an opponent, or undermine justice and alleges that such tactics were deployed against him by family members and certain advocates.
20. On the question of public corruption, he submits that bribery, influence peddling, and abuse of office can affect prosecutorial decisions and judicial outcomes, and that in his case, corruption influenced the dismissal of the charges. He maintains that despite the alleged compromise, the strength of his evidence warranted a conviction.
21. In conclusion, the Appellant prays that the acquittal be set aside, that the matter be heard de novo and that summons issue against persons adversely mentioned so that the court may determine their alleged involvement.
Accused/Respondent’s Submissions
22. The Respondent opposes the intended appeal and the prayer for leave, contending that there is no proper application before the Court and that the proceedings are malicious, misconceived, and intended to settle personal scores arising from a family succession dispute.
23. At the outset, the Respondent notes that the intended Appellant filed a Petition of Appeal dated 30th October 2024, within which he included a prayer seeking leave to appeal against the ruling and acquittal delivered on 17th October 2024. The Respondent submits that although the Appellant has set out grounds challenging the trial court’s decision, he has not filed a substantive application for leave supported by an affidavit, nor has he cited the legal provisions under which such leave is sought. It is argued that leave cannot be sought within a petition of appeal and that, until leave is granted, a petition of appeal cannot properly be filed. The Respondent therefore urges the Court to strike out the purported application with costs for failure to comply with procedural requirements.
24. While acknowledging Article 159(2)(d) of the Constitution, the Respondent submits that the provision is not a cure for all procedural deficiencies. The Respondent placed reliance on the decision of the Supreme Court in Law Society of Kenya v Centre for Human Rights & Democracy & 12 Others Petition No. 14 of 2013, where the Court held that litigants must comply with applicable procedural rules and that Article 159(2)(d) is not a panacea for procedural shortfalls. The Respondent also cites Patricia Cherotich Sawe v Independent Electoral & Boundaries Commission & 4 Others [2015] eKLR for the proposition that Article 159(2)(d) cannot be invoked to bypass jurisdictional prerequisites.
25. On the merits of the grounds of appeal, the Respondent characterizes the Appellant as a vexatious litigant motivated by ill will who has repeatedly sought to use the criminal justice system to punish him. He explains that the parties are siblings and that the Appellant resides in the United States of America and only visits Kenya occasionally.
26. Regarding ground one, the Respondent submits that the Appellant is relying on a mere typographical error in the year of the case number, where Criminal Case No. E516 of 2021 was indicated instead of E516 of 2023. He contends that the parties were correctly captured as Republic versus Stephen Kivondo Mua and that the judgment clearly related to him. He submits that no miscarriage of justice arose from the typographical error, which did not affect the substance of the case.
27. With respect to grounds two, the Respondent denies that any recorded conversation reduced into writing was presented before the trial court. He contends that the Appellant is attempting to introduce fresh evidence through the back door to fill gaps in the prosecution’s case, which the court should not permit.
28. On ground three, he similarly denies the existence of evidence of intimidation or harassment as alleged, describing the claims as malicious and irrelevant to the proceedings before the trial court. On ground four, the Respondent points out that the Appellant himself concedes that there were glaring inconsistencies and inadequacies in the prosecution’s case. He argues that, in light of such deficiencies, the trial court had no option but to acquit the accused.
29. Regarding ground six, the Respondent addresses the reference to Criminal Case No. 309 of 2023, in which he had allegedly been charged with threatening to kill farm workers. He states that in that matter the Appellant was the complainant through his workers; that the case arose from disagreements over the use of estate property; that it was withdrawn for want of evidence; and that it bore no relevance to the case that was before the trial court. He maintains that the Appellant is seeking to rely on a withdrawn case to prejudice the court against him.
30. On grounds seven and eight, the Respondent submits that the trial court properly analyzed the entire evidence and concluded that the prosecution had failed to establish a case to answer due to glaring inconsistencies and inadequacies. He maintains that the trial court cannot be faulted for acquitting the accused where the evidence was insufficient.
31. The Respondent further places the dispute within the context of an ongoing and highly contested succession cause, namely Machakos High Court Succession Cause No. E042 of 2023, Estate of Dorothy Justus Kivondo. He asserts that the Appellant seeks to be the sole administrator of the estate, in a family of six children, and targets siblings who do not support his position. He alleges that the Appellant has taken control of estate properties and commenced multiple constructions before being stopped by the court. He lists several complaints and suits filed by the Appellant against his siblings and others, The Respondent contends that these actions demonstrate a pattern of personal vendetta and misuse of the legal process.
32. On the question whether there are grounds to assume the mandate of the Director of Public Prosecutions (DPP), the Respondent relies on Article 157(6), (10) and (11) of the Constitution, emphasizing that prosecutorial powers are vested in the DPP, who exercises such powers independently and without direction or control from any person. He submits that the Appellant has not demonstrated that he requested the DPP to review or appeal the acquittal and that such request was refused. He argues that the Appellant has not met the threshold for instituting or pursuing a private prosecution. In that regard, reliance is placed on Rufus Riddle Barger v Brian John [1959] EA 8 where the court stated that a private prosecution is only legitimate where it serves as a remedy against culpable inertia or partiality by the public prosecuting authority. The Respondent also cites Rolloh v Director of Public Prosecutions & 5 Others (Criminal Appeal E017 of 2022) [2023] KEHC 17450 (KLR) (11 May 2023) (Judgment), in which the court restated the principles for private prosecution as set out in Floriculture International Limited v Attorney General in Nairobi High Court Misc. Civil Application No. 114 of 1997, including the need to demonstrate that the DPP declined to act, that such refusal was unreasonable, that there is a likelihood of failure of justice, that the applicant is acting in good faith, and that grave social evil would occur unless leave is granted. He further refers to the statutory framework under the Office of the Director of Public Prosecutions Act and Section 88 of the Criminal Procedure Code regarding private prosecutions and the power of the DPP to take over or discontinue such proceedings. The Respondent contends that the Appellant has not satisfied these criteria and is instead attempting to usurp the DPP’s mandate. He maintains that the prosecution did not appeal the acquittal because the evidence was insufficient, as correctly found by the trial court.
33. On the issue of malice, the Respondent argues that the proposed proceedings are brought in bad faith and for ulterior purposes. He submits that the Appellant’s concession regarding inconsistencies in the prosecution’s case underscores the absence of a prima facie case. He relies on Republic v DPP & Another Ex Parte Chamanlal Vrajlal Kamani & Others [2015] eKLR for the proposition that a prudent prosecutor must demonstrate a reasonable and probable cause for prosecution, failing which the prosecution would be malicious and actionable. He further cites Rosemary Wanja Mwagiru & 2 Others v Attorney General & 2 Others [2013] eKLR for the principle that the criminal process must not be used to settle personal scores, harass or oppress and that courts ought to intervene where proceedings are instituted for purposes other than the genuine enforcement of law and order.
34. Finally, the Respondent associates himself with the reasoning in Republic v Jones Mutua Anthony & 3 others [2019] eklr, where the Court emphasized that an accused should not be placed on his defence merely to clear doubts or for the sake of hearing what he has to say; the prosecution bears the burden of proving its case beyond reasonable doubt, and where it fails, the court must acquit.
35. In conclusion, the Respondent submits that the trial court correctly found that there was no evidence to place him on his defence and properly acquitted him. He prays that the purported application for leave be dismissed with costs, on the basis that it is procedurally defective, unsupported by the law governing private prosecution, and motivated by malice arising from a family succession dispute rather than the genuine pursuit of justice.
Analysis and determination
36. I have considered the present petition of appeal; the order being sought and the submissions filed by the parties herein. The issue for determination is whether the prayer for leave to appeal against the acquittal delivered on 17th October 2024 should be granted to the Appellant.
37. The impugned decision resulted in the acquittal of the accused person. Under Section 348A of the Criminal Procedure Code, the Director of Public Prosecutions may appeal to the High Court from an acquittal on matters of fact and law. The provision does not expressly confer a similar automatic right of appeal to a complainant. It follows that where a complainant seeks to challenge an acquittal, such recourse is not as of right but must be grounded within the broader statutory and constitutional framework governing criminal prosecutions and private prosecutions.
38. Article 157(6) of the Constitution of Kenya vests State prosecutorial powers in the Director of Public Prosecutions (DPP), including the power to institute and undertake criminal proceedings. Article 157(10) further guarantees the independence of the DPP, while Article 157(11) requires the DPP, in exercising prosecutorial power, to have regard to public interest, the interests of the administration of justice and the need to prevent abuse of the legal process.
39. The Appellant’s case is that the acquittal was tainted by prosecutorial misconduct, corruption, suppression of evidence and intimidation, and that the trial court failed to properly evaluate the evidence, including recorded conversations allegedly reduced into writing. He contends that the criminal process was manipulated and that the interests of justice require that he be granted leave to appeal and the matter be heard de novo.
40. The Respondent on the other hand, contends that the application is procedurally incompetent; that leave cannot be sought within a petition of appeal; that the Appellant has not demonstrated that the DPP declined to appeal or acted with culpable inertia; and that the intended appeal is motivated by malice arising from a family succession dispute. He further argues that the trial court correctly found the prosecution evidence inconsistent and inadequate and that there was no miscarriage of justice.
41. In determining whether leave should be granted, this Court must be guided by the principles governing private prosecutions and appellate intervention in acquittals. Kenyan jurisprudence has consistently held that private prosecutions are exceptional in nature and must not be permitted to undermine the constitutional mandate of the DPP. In Floriculture International Limited & others v Attorney General Nairobi High Court Miscellaneous Civil Application No. 114 of 1997, the High Court outlined the principles that a private prosecution is only justified where it serves as a remedy against culpable inertia or partially on the part of the public prosecuting authority. The court held that an applicant must demonstrate that the DPP has declined to act, that such refusal is unreasonable, that there is a likelihood of failure of justice unless leave is granted, and that the applicant is acting in good faith.
42. Although the present matter concerns leave to appeal rather than institution of a private prosecution ab initio, the underlying rationale is analogous. An appeal against an acquittal is a significant step. It engages not only the rights of the complainant but also the constitutional protections afforded to an accused person, including the presumption of innocence and the principle of finality of criminal proceedings.
43. The material placed before this court does not demonstrate that the Appellant formally sought a review or appeal by the Director of Public Prosecutions and that such request was refused. There is no evidence that the DPP declined to act or institute or conduct criminal appeal proceedings. Allegations of corruption, intimidation and prosecutorial compromise, though serious, remain unsubstantiated within the evidentiary material presented in support of the present prayer for leave. Indeed, many of those allegations fall within the investigative mandate of oversight bodies established by statute and cannot be conclusively determined within the limited scope of an application for leave.
44. Further, the Appellant himself acknowledges inconsistencies and inadequacies in the prosecution case before the trial court. The Respondent’s submission that the acquittal followed the prosecution’s failure to establish a prima facie case is borne out by the record as described in the pleadings. It is trite that an appellate court will not lightly interfere with an acquittal unless it is shown that the trial court misdirected itself on the law, failed to consider material evidence or reached a conclusion that was plainly unreasonable. Leave to appeal should not be granted merely because the complainant is dissatisfied with the outcome.
45. This court is also alive to the constitutional command under Article 159(2)(d) that justice shall be administered without undue regard to procedural technicalities. However, where a litigant seeks to step into a prosecutorial space constitutionally reserved for the DPP, the court must be satisfied that the statutory and jurisprudential thresholds have been met.
46. Having weighed the both parties’ arguments, I am not persuaded that the Appellant has demonstrated exceptional circumstances warranting the grant of leave. There is no sufficient material before this court to establish that the DPP failed to act in circumstances justifying judicial intervention nor that a grave miscarriage of justice will occur unless leave is granted. The allegations of conspiracy and corruption, while serious, have not been substantiated to the threshold required to displace the presumption of regularity attaching to judicial and prosecutorial acts. Equally, the grounds advanced largely challenge the evaluation of evidence by the trial court, a matter that, in the absence of a demonstrated error of law or principle does not automatically warrant leave.
47. In the circumstances, and bearing in mind the need to safeguard both the integrity of the criminal justice system and the rights of the accused person who has been acquitted, I find that the Appellant has not met the legal threshold for the grant of leave to appeal.
48. Accordingly, the prayer for leave is declined. The Respondent is awarded costs of Kshs 50,000/-
Orders accordingly.
Delivered, Dated and Signed this 6th day of March 2026