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The applicant by way of a Notice of Motion dated 7 th August 2025 approached this court by way of revision following the withdrawal of Milimani Chief Magistrate’s Court Criminal Case No. E560 of 2024 Republic Vs. Abdirahman Abdi Abdi.
The application was expressed to be brought under Articles 49, 50, 157, 159 and 165(6) and (7) of the Constitution of Kenya, 2010, sections 123(2), 123A, 362 and 364 of the Criminal Procedure Code, Cap 75 Laws of Kenya, and all other enabling provisions of the Law.
The applicant sought the following orders:-
THAT due to the urgency, this application be certified urgent and be heard ex parte in the first instance.
THAT this Honorable Court be pleased to stop the release of the 1st Respondent''s Passport and Cash Bail pending the hearing and determination of this application inter partes.
THAT this Honorable Court be pleased to stay the ruling in Republic v. ABDIRAHMAN ABDI ABDI (Milimani MCCR E560 of 2024) (hereinafter, the subject criminal case) delivered in the Chief Magistrate''s Court at Milimani (Hon. G. Onsarigo, SPM) (hereinafter, the Learned Trial Court).
THAT this Honorable Court be pleased to call for and examine the record of the subject criminal case for the purpose of satisfying itself as to the correctness, legality and or propriety of the court''s ruling delivered on 08th August 2025 (hereinafter, the impugned ruling) and or the regularity of the proceedings leading thereto.
THAT this Honorable Court be pleased to find that the learned trial court disregarded the submissions of the applicant through their counsel supported by his letter opposing the withdrawal of the subject criminal case.
THAT this Honorable Court be pleased to find that the learned trial court arrived at the incorrect conclusion by allowing the 2nd respondents application for withdrawal of criminal charges against the 1strespondent improperly relying on unsubstantiated averments made from the bar.
THAT this Honorable Court be pleased to find that the Applicant provided sufficient justification in opposing the application to withdraw the criminal charges against the 1st respondent and therefore established a proper basis for the subject criminal matter to proceed to its logical conclusion.
THAT this Honorable Court be pleased to revise the impugned ruling and substitute the order allowing the withdrawal of charges against the 1st Respondent, and granting the Applicant''s prayer to have the subject criminal case proceed.
THAT this Honorable Court be pleased to make any other order that it may deem necessary.
The Court on 11 th of August 2025 considered the Certificate of urgency and granted interim orders restraining the court Administrator in the Chief Magistrates court from releasing the passport of the 1 st Respondent since he was said to be a flight risk.
The court ordered the applicant to serve the respondent and return for inter partes hearing on 14 th August 2025 owing to the urgency of the matter.
On 14 th August 2025 MR. MUSUNDI advocate for the applicant informed the court that he had served MR. SHIMAKA counsel for the 1 st respondent via email. The court directed Mr. Musundi to try and call MR. SHIMAKA so that he could appear in court at 10:30 a.m and prosecute the application.
At 10:30 a.m. when the matter was called our Mr. Musundi advocate informed the court that he had tried calling MR. SHIMAKA but MR. SHIMAKA had not picked his call.
The applicants insisted on being heard and since the state was represented the court proceeded to hear the matter.
The court in arriving at the decision to proceed and hear the matter in the absence of the 1 st respondent was guided by the provisions of Section 362 as read with Section 365 of the Criminal Procedure Code.
The impugned decision was that of the learned Hon. Magistrate and the representation of the Director of Public Prosecution was sufficient for purposes of disposing of the matter and considering that the respondent would not be prejudiced in any event. The affidavit of service by Shadrack Kimanzi Mumo sworn on 12 th August 2025 was also clear that the respondent had been served.
The applicant’s complaint is that the trial magistrate erred in permitting the withdrawal of the subject criminal case without taking into consideration the representations made by counsel for the complainant during the hearing of the withdrawal application.
The applicant contends that the withdrawal was irregular, unlawful and prejudicial to him as the complainant in the criminal case.
The applicant argued that when the Director of Public Prosecution decided to withdraw the matter, he did so without consulting him as the victim thus the decision to withdraw was against the express provisions of Sections 20 and 21 of the Victims Protection Act.
The complaint by the applicant is that the power of the Director of Public Prosecution to withdraw charges under Section 87 (a) of the Criminal Procedure Code is not absolute and it must be exercised in accordance with the constitution.
The applicant cited the case of Nyabuto Vs. ODPP (Misc. CR. APP. No. E008 of 2023) [2023] KEHC 23493 (KLR) (11 th October 2023) Ruling by Mohochi , J where the learned Judge held that the courts decision allowing the withdrawal of charges by the trial court without reference to the victim was in contravention of Sections 20 and 21 of the Victims Protection Act.
The applicant further argued that the decision to withdraw a criminal case must be in the public interest and should not be willy nilly in the words of Mohochi, J in the authority cited.
Further, the applicant submitted that all facts must be considered before withdrawing a Criminal case and the impact that is likely to have on the interest of the complainant.
The applicant further argued that the power to withdraw cases should not be used to reward an accused person as that would be against the public interest.
The applicant further cited the case of Prosecutor Vs. Stephen Lesinko [2018] eKLR in which the court held that the complainants have a compelling interest to know the outcome of the criminal case against the accused and is improbable to answer this concern with the answer that the prosecution did not attend proceedings.
The applicant urged this court to find that where material evidence of the parties is not considered before the decision to withdraw, the decision ought to be reviewed.
The court was also urged to find that where judicial discretion exercised arbitrarily or perversely or where the trial court ignores material facts, the decision by that court should not be allowed to stand.
The applicant urged this court in examining the Ruling of the learned Honorable magistrate to peruse the record of the lower court and note that the applicant through counsel had done a letter to the Director of Public Prosecutions protesting the intended review of the decision to prosecute and that the said letter was copied to the court.
The applicant contends that the letter plus the accompanying evidence that they provided to the court and the Director of Public Prosecutions was not considered thus the decision permitting the withdrawal was irregular and incorrect.
The applicant contends that the magistrate ought to have considered that he had lost land and the fact of there being a civil suit in the ELC court was not a bar to criminal proceedings.
The applicant argued that the jurisdiction to try the criminal offences was for the trial court and not the Land and Environment court.
The applicant further argued that the trial court ignored the provisions of Section 193 of the Criminal Procedure Code thus the withdrawal was flawed.
The applicant urged this court to exercise its powers under Article 165 (6) & (7) of the Constitution and find that the 2 nd respondent’s failure to consult with the victim rendered the decision of the lower court untenable in law and should be set aside.
The applicant urged this court to consider granting him leave to prosecute should there be reluctant on the part of the 2 nd respondent to do so.
The application was opposed by MS Ogega counsel for 2 nd respondent.
The 1 st respondent did not appear although he was served and an affidavit of service filed on 13/8/2025.
The 2 nd respondent through MS Ogega argued that the decision to withdraw was based on the fact that there was a Civil suit in the Environment and Land court touching on the subject matter.
Counsel argued that the withdrawal was to allow time for the civil matter to be concluded because that would affect the trial court.
The intention of the 2 nd respondent in withdrawing the matter, according to counsel, was to avoid abuse of legal process.
The withdraw according to the 2 nd respondent’s counsel was in the public interest.
The withdrawal according to the second respondent followed discovery of facts that were not within their knowledge when the charges were preferred.
The 2 nd respondent based their argument for withdrawal on the provisions of Section 54 (a) of the Office of the Director Acy which empowers the Director of Public Prosecutions to review the decision to prosecute in appropriate cases.
The Civil suit was indicated to be ELC No. E194/2023 and the criminal case was said to have been initiated a year later.
The 2 nd respondent argued that Director of Public Prosecution enjoys independence in decision making under Article 157(10) and that the view of the victims do not necessarily bind the Director of Public Prosecution in making his decisions.
Counsel further argued that the applicant had not demonstrated the prejudice he stood to suffer following the withdrawal.
Ms Ogega firmly opposed the suggestion by the applicant that this court considers granting them leave to initiate private prosecution maintaining that is a preserve for the lower court where the applicant should go.
The applicant’s counsel responded arguing that the powers of the court under Article 165 are enormous and the court can grant leave to initiate private prosecution where the Director of Public Prosecutions appears reluctant to do so.
The applicant argued that he need not be sent to the lower court to seek leave.
The applicants further argued that the decision to prosecute was made whilst the civil suit was pending therefore there was no change of circumstances to warrant review of the decision to prosecute.
The applicant contended that the accused (1 st Respondent) would have all his rights during the trial thus this court should be able to intervene and revise the decision of the trial court.
ANALYSIS AND DETERMINATION
The High court under Article 165 (6) and (7) of the constitution of Kenya exercises supervisory jurisdiction over the Lower courts
The power to supervise the subordinate courts is further entrenched under Section 362 of the Criminal Procedure Code.
Section 362 of the of the Criminal Procedure Code provides:-
Power of High Court to call for records
The High Court may 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.
This court in exercise of that power called for the Lower court file to be place before it for perusal.
The record was availed and the court has perused the same as well as the Ruling complained of by the applicant.
As earlier on stated this court heard the application in the absence of the 1 st Respondent in exercise of power under Section 365 of the Criminal Procedure Code which provides:-
Powers of High Court on revision
In the case of a proceeding in a subordinate court the record of which has been called for or which has been reported for orders, or which otherwise comes to its knowledge, the High Court may—
(a) in the case of a conviction, exercise any of the powers conferred on it as a court of appeal by sections 354, 357 and 358, and may enhance the sentence;
(b) in the case of any other order other than an order of acquittal, alter or reverse the order.
(2) No order under this section shall be made to the prejudice of an accused person unless he has had an opportunity of being heard either personally or by an advocate in his own defence: Provided that this subsection shall not apply to an order made where a subordinate court has failed to pass a sentence which it was required to pass under the written law creating the offence concerned.
(3) Where the sentence dealt with under this section has been passed by a subordinate court, the High Court shall not inflict a greater punishment for the offence which in the opinion of the High Court the accused has committed than might have been inflicted by the court which imposed the sentence.
(4) Nothing in this section shall be deemed to authorize the High Court to convert a finding of acquittal into one of conviction.
(5) When an appeal lies from a finding, sentence or order, and no appeal is brought, no proceeding by way of revision shall be entertained at the insistence of the party who could have appealed.
It was the responsibility of the 1 st Respondent to appear at the hearing after he was served but he elected not to do so.
In the High court of Malaysia the Revisionary of the High court was ably explained in Public Prosecutor vs. Muhari bin Mohd Jani and Another [1996] 4 LRC728 at 734, 735:
“The powers of the High Court in revision are amply provided under section 325 of the Criminal Procedure Code subject only to subsections (ii) and (iii) thereof. The object of revisionary powers of the High Court is to confer upon the High Court a kind of “paternal or supervisory jurisdiction” in order to correct or prevent a miscarriage of justice. In a revision the main question to be considered is whether substantial justice has been done or will be done and whether any order made by the lower court should be interfered with in the interest of justice…If we have been entrusted with the responsibility of a wide discretion, we should be the last to attempt to fetter that discretion…This discretion, like all other judicial discretions ought, as far as practicable, to be left untrammeled and free, so as to be fairly exercised according to the
exigencies of each case”.
The position was amplified in Machaki & Another Vs Republic (Criminal Revision E126 of 2024 [2024] KEHC 12838 (KLR) where Justice L. Njuguna stated that the purpose of exercising the court’s revisionary power is to examine the correctness and the propriety of the trial courts order.
The court has been urged by the applicant to consider that the Director of Public Prosecutions ignored their concern in taking the decision to withdraw the criminal case and that the learned honorable magistrate made an irregular order in allowing the Director of Public Prosecutions to withdraw the matter in the face of the material they placed before the court.
It is important to state here that the court has its scope defined by the law. It can only examine the record to satisfy itself as to the correctness, legality or propriety of the order by the learned Honorable Magistrate.
The Ruling by the learned Honorable magistrate was made on 7 th August 2025.
The complainant’s letter to the Director of Public Prosecutions copied to the court is dated the 28 th July 2025 and was filed in court electronically on 29/7/2025 at 16:55 p.m.
The trial court on 30/7/2025 heard the application for withdrawal and MR. Musundi advocate for the applicant is indicated as having opposed the application.
The record shows that on that day the complainant applicant was ready to testify and that counsel informed the court that the decision to withdraw by the Director of Public Prosecution was made without reference to the victim.
The victim informed the court that they need to have the ruling deferred so that they could consult with the Director of Public Prosecutions since in their view there were no cogent reasons had been advanced for the withdrawal.
The court after hearing the parties reserved the matter for ruling on 7/8/2025.
The reason for the withdraw that was given by the Director of Public Prosecutions was that there is a pending Civil matter before the Environment and Land court.
The magistrate in his Ruling stated:-
“the three elements put a responsibility on the Director of Public Prosecutions to ensure that such withdrawal is done in good faith in pursuit of fairness and justice.”
The honorable magistrate went further to state:-
“The prosecution advanced the reason that after reviewing the evidence they firmed the opinion that this matter be handled at the environment and Land court. In my view that is a justifiable reason to warrant a withdrawal.”
The court went on to allow the application for withdrawal under Section 87 (a) of the Criminal Procedure Code.
It is clear from the Ruling that the learned Honorable magistrate did not make mention of the protest by the victim.
In fact, nowhere in the Ruling does he make a mention of the Provisions of Sections 20 and 21 of the Victim’s Protection Act despite the same having been placed before him. It is no doubt therefore the victims voice was drowned in the arguments about the power of the Director of Public Prosecutions to withdraw cases.
It is important to point out that no one contests the authority of the Director of Public Prosecutions to terminate or withdraw cases in exercise of his powers under Article 157 of the constitution.
The issue that keeps recurring and is at the center of this application is how that power is to be exercised in modern day Kenya. The call for transparency and accountability in the manner in which the power is exercised. The DPP like all other decisions makers is bound by the provisions of Article 47 of the Constitution in decision making. The victim just like a suspect expects some degree of fairness in the making of prosecutorial decisions.
The introduction of Article 50 (7) of the Constitution is the beginning point in addressing the place of the victim in our criminal justice system. The victim is no longer a passive participant in a criminal case. His concerns must be taken into account and decisions made about them by the courts.
The Article 50 provides:-
Fair hearing.
(1) Every person has the right to have any dispute that can be resolved by the application of law decided in a fair and public hearing before a court or, if appropriate, another independent and impartial tribunal or body.
(2) Every accused person has the right to a fair trial, which includes the right—
(a) to be presumed innocent until the contrary is proved;
(b) to be informed of the charge, with sufficient detail to answer it;
(c) to have adequate time and facilities to prepare a defence;
(d) to a public trial before a court established under this Constitution;
(e) to have the trial begin and conclude without unreasonable delay;
(f) to be present when being tried, unless the conduct of the accused person makes it impossible for the trial to proceed;
(g) to choose, and be represented by, an advocate, and to be informed of this right promptly;
(h) to have an advocate assigned to the accused person by the State and at State expense, if substantial injustice would otherwise result, and to be informed of this right promptly;
(i) to remain silent, and not to testify during the proceedings;
(j) to be informed in advance of the evidence the prosecution intends to rely on, and to have reasonable access to that evidence;
(k) to adduce and challenge evidence;
(l) to refuse to give self-incriminating evidence;
(m) to have the assistance of an interpreter without payment if the accused person cannot understand the language used at the trial;
(n) not to be convicted for an act or omission that at the time it was committed or omitted was not—
(i) an offence in Kenya;
(ii) or a crime under international law;30 Constitution of Kenya [Rev. 2022] (o) not to be tried for an offence in respect of an act or omission for which the accused person has previously been either acquitted or convicted;
(p) to the benefit of the least severe of the prescribed punishments for an offence, if the prescribed punishment for the offence has been changed between the time that the offence was committed and the time of sentencing; and
(q) if convicted, to appeal to, or apply for review by, a higher court as prescribed by law.
(3) If this Article requires information to be given to a person, the information shall be given in a language that the person understands. (4) Evidence obtained in a manner that violates any right or fundamental freedom in the Bill of Rights shall be excluded if the admission of that evidence would render the trial unfair, or would otherwise be detrimental to the administration of justice.
(5) An accused person—
(a) charged with an offence, other than an offence that the court may try by summary procedures, is entitled during the trial to a copy of the record of the proceedings of the trial on request; and
(b) has the right to a copy of the record of the proceedings within a reasonable period after they are concluded, in return for a reasonable fee as prescribed by law.
(6) A person who is convicted of a criminal offence may petition the High Court for a new trial if—
(a) the person’s appeal, if any, has been dismissed by the highest court to which the person is entitled to appeal, or the person did not appeal within the time allowed for appeal; and
(b) new and compelling evidence has become available.
(7) In the interest of justice, a court may allow an intermediary to assist a complainant or an accused person to communicate with the court.(emphasis mine)
(8) This Article does not prevent the exclusion of the press or other members of the public from any proceedings if the exclusion is necessary, in a free and democratic society, to protect witnesses or vulnerable persons, morality, public order or national security.
(9) Parliament shall enact legislation providing for the protection, rights and welfare of victims of offences.
The complainant has the right to communicate with the court in the course of proceedings. The natural and legitimate expectation is that once a complainant communicates his concerns to the court, the court would proceed to address its mind to the same and grant appropriate orders taking into account the victim’s concerns.
The concerns of the victim cannot be simply swept under the carpet as happened in this case. Times have changed and the jurisprudential terrain is awash with decisions that can guide courts in determining the rights of victims.
In the impugned ruling, the learned honorable magistrate said nothing about the request by the applicant to defer the ruling to allow consultation with the Director of Public Prosecutions. The action by the magistrate was improper, incorrect and irregular considering the provisions of the law on victim rights.
Section 20 of the Victims Protection Act provides;-
Right to submit information
(1)A victim has a right to submit any information for consideration to the—(a)police or prosecution on a decision whether or not to lay a charge, or to appeal or withdrawal ;(emphasis mine)
(b)court during plea bargaining, bail hearing and sentencing;
(c)Advisory Committee on the Power of Mercy established under the Power of Mercy Act (Cap. 94), on the release or pardon of a convict.
(2) Where a victim gives any information to a law enforcement officer, the officer shall inform the victim that—
(a)the information shall be ascertained for submission to the Court;
(b)the victim shall ensure that any information that the victim gives is true; and
(c)the information may be recorded and signed by the victim.
(3) The collection of any views from a victim under this section shall not prejudice or delay any proceedings relating to the offence complained of.
The learned Honorable Magistrate should have noted that Section 20 (1) (a) of the Victims Protection Act gives the right to Victims to submit information to the police or prosecution on decision whether or not to lay a charge or to appeal or withdraw.
The request by the applicant for the ruling to be deferred was well within the law and ought to have been granted and allow the parties to return at a later date to inform the court of any developments before the court could decide on whether or not to allow the withdrawal.
The Section in essence imposes a duty upon the Law enforcement authorities i.e the police and the prosecution to seek information from victims of crime before the decision to withdraw a matter is made. Similarly, where a victim such as happened in this case gets to know of the intention to withdraw a matter, he is at liberty to submit information to then DPP who under under Articles 10, 47 and 157(11) of the Constitution is obliged to consider the information supplied, make a decision on it and inform the victim of the decision made.
The DPP is not by doing so subjugating his authority to control prosecutions to the victim but is simply acting within the Constitutional bounds of procedural fairness in decision making and reasonableness. See Associated Provincial Picture Houses Ltd vs. Wednesbury Corporation {1948} 1 K.B 223
The Section of the law having been enacted after the promulgation of the Constitution of Kenya 2010, it must have been intended to ensure that victim’s rights interests and concerns in the Criminal justice process are not casually overlooked in the making of the decision whether or not to charge any person or to withdraw any matter once the same has been initiated in court in line with Articles 10 and 50 (7) of the Constitution. The magistrate therefore erred in failing to allow the victim to consult with the DPP.
It is important to point out for the avoidance of doubt that the Director of Public Prosecutions would still retain his decisional independence as expressed under Article 157 (10) of the Constitution.
It would appear to me that Section 20 of the Victims Protection Act was intended to promote transparency and accountability in making prosecutorial decisions and further the participation of victims in the trial processes.
The Supreme Court had occasion to consider the place of victims in our criminal justice system in Waswa v Republic (Petition 23 of 2019) [2020] KESC 23 (KLR) (4 September 2020) (Judgment). The court had the following to say;-
‘67. The trial court being an impartial entity that oversees the progress of a case, has the ultimate function of determining the accused''s guilt or innocence. Its aim is to establish the truth. The purpose of criminal proceedings, generally speaking, is to hear and determine finally whether the accused has engaged in conduct which amounts to an offence and, on that account, is deserving of punishment. Thus, the rights of the accused cannot be considered in isolation without regard to those of the victim. Victims too have a legitimate interest in the court’s exercise of its jurisdiction. The Criminal Justice System should cultivate a process that inspires the trust of both the victim and the accused.
68.Considering the rights of the accused, the victim, and society as a whole in a criminal trial is not only fair, pragmatic but also constitutionally viable. This has been acknowledged in various jurisdictions. In Attorney-General’s Reference (No. 3 of 1999) [2001] 2 AC 91 [118], the House of Lords was dealing with a question of law involving the proper construction of section 64(3B) of the Police and Criminal Evidence Act 1984. One of the issues that came for consideration was fairness of a trial. Lord Steyn observed:“The purpose of the criminal law is to permit everyone to go about their daily lives without fear of harm to person or property. And it is in the interests of everyone that serious crime should be effectively investigated and prosecuted. There must be fairness to all sides. In a criminal case this requires the court to consider a triangulation of interests. It involves taking into account the position of the accused, the victim and his or her family, and the public.”
69.This decision was cited with approval by House of Lords in R v H [2004] 2 AC 134. Herein, the Lords made pertinent observations on ‘a fair trial’. They noted at paragraph 11 that ‘fairness is a constantly evolving concept’ and that ‘it is important to recognise that standards and perceptions of fairness may change, not only from one century to another but also, sometimes, from one decade to another’. They observed that although the focus of article 6 of the European Convention is on the right of a criminal defendant to a fair trial, this has to be exercised within the framework of the administration of the criminal law and ‘requires that the trial process, viewed as a whole, must be fair’. They noted at paragraph 12 that ‘the European Court has repeatedly recognised that individual rights should not be treated as if enjoyed in a vacuum’ in its decisions in Sporrong and Lönnroth v Sweden (1982) 5 EHRR 35, 52, para 69; Sheffield and Horsham v United Kingdom (1998) 27 EHRR 163, 191, para 52.
70.We agree with these sentiments. The trial Judge must protect the rights of all parties involved in criminal proceedings. There is a public interest in ensuring that trials are fair. This interest can be served by safeguarding the rights of the accused, the objectivity of the prosecution and, by acknowledging the victim’s interest. The rights of the accused should be secured and fulfilled. So too the public interest. The rights of victims, properly understood, do not undermine those of the accused or the public interest. The true interrelationship of the three is complementary.
85. The law on the rights of victims
[...truncated]
The applicant by way of a Notice of Motion dated 7 th August 2025 approached this court by way of revision following the withdrawal of Milimani Chief Magistrate’s Court Criminal Case No. E560 of 2024 Republic Vs. Abdirahman Abdi Abdi.
The application was expressed to be brought under Articles 49, 50, 157, 159 and 165(6) and (7) of the Constitution of Kenya, 2010, sections 123(2), 123A, 362 and 364 of the Criminal Procedure Code, Cap 75 Laws of Kenya, and all other enabling provisions of the Law.
The applicant sought the following orders:-
THAT due to the urgency, this application be certified urgent and be heard ex parte in the first instance.
THAT this Honorable Court be pleased to stop the release of the 1st Respondent''s Passport and Cash Bail pending the hearing and determination of this application inter partes.
THAT this Honorable Court be pleased to stay the ruling in Republic v. ABDIRAHMAN ABDI ABDI (Milimani MCCR E560 of 2024) (hereinafter, the subject criminal case) delivered in the Chief Magistrate''s Court at Milimani (Hon. G. Onsarigo, SPM) (hereinafter, the Learned Trial Court).
THAT this Honorable Court be pleased to call for and examine the record of the subject criminal case for the purpose of satisfying itself as to the correctness, legality and or propriety of the court''s ruling delivered on 08th August 2025 (hereinafter, the impugned ruling) and or the regularity of the proceedings leading thereto.
THAT this Honorable Court be pleased to find that the learned trial court disregarded the submissions of the applicant through their counsel supported by his letter opposing the withdrawal of the subject criminal case.
THAT this Honorable Court be pleased to find that the learned trial court arrived at the incorrect conclusion by allowing the 2nd respondents application for withdrawal of criminal charges against the 1strespondent improperly relying on unsubstantiated averments made from the bar.
THAT this Honorable Court be pleased to find that the Applicant provided sufficient justification in opposing the application to withdraw the criminal charges against the 1st respondent and therefore established a proper basis for the subject criminal matter to proceed to its logical conclusion.
THAT this Honorable Court be pleased to revise the impugned ruling and substitute the order allowing the withdrawal of charges against the 1st Respondent, and granting the Applicant''s prayer to have the subject criminal case proceed.
THAT this Honorable Court be pleased to make any other order that it may deem necessary.
The Court on 11 th of August 2025 considered the Certificate of urgency and granted interim orders restraining the court Administrator in the Chief Magistrates court from releasing the passport of the 1 st Respondent since he was said to be a flight risk.
The court ordered the applicant to serve the respondent and return for inter partes hearing on 14 th August 2025 owing to the urgency of the matter.
On 14 th August 2025 MR. MUSUNDI advocate for the applicant informed the court that he had served MR. SHIMAKA counsel for the 1 st respondent via email. The court directed Mr. Musundi to try and call MR. SHIMAKA so that he could appear in court at 10:30 a.m and prosecute the application.
At 10:30 a.m. when the matter was called our Mr. Musundi advocate informed the court that he had tried calling MR. SHIMAKA but MR. SHIMAKA had not picked his call.
The applicants insisted on being heard and since the state was represented the court proceeded to hear the matter.
The court in arriving at the decision to proceed and hear the matter in the absence of the 1 st respondent was guided by the provisions of Section 362 as read with Section 365 of the Criminal Procedure Code.
The impugned decision was that of the learned Hon. Magistrate and the representation of the Director of Public Prosecution was sufficient for purposes of disposing of the matter and considering that the respondent would not be prejudiced in any event. The affidavit of service by Shadrack Kimanzi Mumo sworn on 12 th August 2025 was also clear that the respondent had been served.
The applicant’s complaint is that the trial magistrate erred in permitting the withdrawal of the subject criminal case without taking into consideration the representations made by counsel for the complainant during the hearing of the withdrawal application.
The applicant contends that the withdrawal was irregular, unlawful and prejudicial to him as the complainant in the criminal case.
The applicant argued that when the Director of Public Prosecution decided to withdraw the matter, he did so without consulting him as the victim thus the decision to withdraw was against the express provisions of Sections 20 and 21 of the Victims Protection Act.
The complaint by the applicant is that the power of the Director of Public Prosecution to withdraw charges under Section 87 (a) of the Criminal Procedure Code is not absolute and it must be exercised in accordance with the constitution.
The applicant cited the case of Nyabuto Vs. ODPP (Misc. CR. APP. No. E008 of 2023) [2023] KEHC 23493 (KLR) (11 th October 2023) Ruling by Mohochi , J where the learned Judge held that the courts decision allowing the withdrawal of charges by the trial court without reference to the victim was in contravention of Sections 20 and 21 of the Victims Protection Act.
The applicant further argued that the decision to withdraw a criminal case must be in the public interest and should not be willy nilly in the words of Mohochi, J in the authority cited.
Further, the applicant submitted that all facts must be considered before withdrawing a Criminal case and the impact that is likely to have on the interest of the complainant.
The applicant further argued that the power to withdraw cases should not be used to reward an accused person as that would be against the public interest.
The applicant further cited the case of Prosecutor Vs. Stephen Lesinko [2018] eKLR in which the court held that the complainants have a compelling interest to know the outcome of the criminal case against the accused and is improbable to answer this concern with the answer that the prosecution did not attend proceedings.
The applicant urged this court to find that where material evidence of the parties is not considered before the decision to withdraw, the decision ought to be reviewed.
The court was also urged to find that where judicial discretion exercised arbitrarily or perversely or where the trial court ignores material facts, the decision by that court should not be allowed to stand.
The applicant urged this court in examining the Ruling of the learned Honorable magistrate to peruse the record of the lower court and note that the applicant through counsel had done a letter to the Director of Public Prosecutions protesting the intended review of the decision to prosecute and that the said letter was copied to the court.
The applicant contends that the letter plus the accompanying evidence that they provided to the court and the Director of Public Prosecutions was not considered thus the decision permitting the withdrawal was irregular and incorrect.
The applicant contends that the magistrate ought to have considered that he had lost land and the fact of there being a civil suit in the ELC court was not a bar to criminal proceedings.
The applicant argued that the jurisdiction to try the criminal offences was for the trial court and not the Land and Environment court.
The applicant further argued that the trial court ignored the provisions of Section 193 of the Criminal Procedure Code thus the withdrawal was flawed.
The applicant urged this court to exercise its powers under Article 165 (6) & (7) of the Constitution and find that the 2 nd respondent’s failure to consult with the victim rendered the decision of the lower court untenable in law and should be set aside.
The applicant urged this court to consider granting him leave to prosecute should there be reluctant on the part of the 2 nd respondent to do so.
The application was opposed by MS Ogega counsel for 2 nd respondent.
The 1 st respondent did not appear although he was served and an affidavit of service filed on 13/8/2025.
The 2 nd respondent through MS Ogega argued that the decision to withdraw was based on the fact that there was a Civil suit in the Environment and Land court touching on the subject matter.
Counsel argued that the withdrawal was to allow time for the civil matter to be concluded because that would affect the trial court.
The intention of the 2 nd respondent in withdrawing the matter, according to counsel, was to avoid abuse of legal process.
The withdraw according to the 2 nd respondent’s counsel was in the public interest.
The withdrawal according to the second respondent followed discovery of facts that were not within their knowledge when the charges were preferred.
The 2 nd respondent based their argument for withdrawal on the provisions of Section 54 (a) of the Office of the Director Acy which empowers the Director of Public Prosecutions to review the decision to prosecute in appropriate cases.
The Civil suit was indicated to be ELC No. E194/2023 and the criminal case was said to have been initiated a year later.
The 2 nd respondent argued that Director of Public Prosecution enjoys independence in decision making under Article 157(10) and that the view of the victims do not necessarily bind the Director of Public Prosecution in making his decisions.
Counsel further argued that the applicant had not demonstrated the prejudice he stood to suffer following the withdrawal.
Ms Ogega firmly opposed the suggestion by the applicant that this court considers granting them leave to initiate private prosecution maintaining that is a preserve for the lower court where the applicant should go.
The applicant’s counsel responded arguing that the powers of the court under Article 165 are enormous and the court can grant leave to initiate private prosecution where the Director of Public Prosecutions appears reluctant to do so.
The applicant argued that he need not be sent to the lower court to seek leave.
The applicants further argued that the decision to prosecute was made whilst the civil suit was pending therefore there was no change of circumstances to warrant review of the decision to prosecute.
The applicant contended that the accused (1 st Respondent) would have all his rights during the trial thus this court should be able to intervene and revise the decision of the trial court.
ANALYSIS AND DETERMINATION
The High court under Article 165 (6) and (7) of the constitution of Kenya exercises supervisory jurisdiction over the Lower courts
The power to supervise the subordinate courts is further entrenched under Section 362 of the Criminal Procedure Code.
Section 362 of the of the Criminal Procedure Code provides:-
Power of High Court to call for records
The High Court may 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.
This court in exercise of that power called for the Lower court file to be place before it for perusal.
The record was availed and the court has perused the same as well as the Ruling complained of by the applicant.
As earlier on stated this court heard the application in the absence of the 1 st Respondent in exercise of power under Section 365 of the Criminal Procedure Code which provides:-
Powers of High Court on revision
In the case of a proceeding in a subordinate court the record of which has been called for or which has been reported for orders, or which otherwise comes to its knowledge, the High Court may—
(a) in the case of a conviction, exercise any of the powers conferred on it as a court of appeal by sections 354, 357 and 358, and may enhance the sentence;
(b) in the case of any other order other than an order of acquittal, alter or reverse the order.
(2) No order under this section shall be made to the prejudice of an accused person unless he has had an opportunity of being heard either personally or by an advocate in his own defence: Provided that this subsection shall not apply to an order made where a subordinate court has failed to pass a sentence which it was required to pass under the written law creating the offence concerned.
(3) Where the sentence dealt with under this section has been passed by a subordinate court, the High Court shall not inflict a greater punishment for the offence which in the opinion of the High Court the accused has committed than might have been inflicted by the court which imposed the sentence.
(4) Nothing in this section shall be deemed to authorize the High Court to convert a finding of acquittal into one of conviction.
(5) When an appeal lies from a finding, sentence or order, and no appeal is brought, no proceeding by way of revision shall be entertained at the insistence of the party who could have appealed.
It was the responsibility of the 1 st Respondent to appear at the hearing after he was served but he elected not to do so.
In the High court of Malaysia the Revisionary of the High court was ably explained in Public Prosecutor vs. Muhari bin Mohd Jani and Another [1996] 4 LRC728 at 734, 735:
“The powers of the High Court in revision are amply provided under section 325 of the Criminal Procedure Code subject only to subsections (ii) and (iii) thereof. The object of revisionary powers of the High Court is to confer upon the High Court a kind of “paternal or supervisory jurisdiction” in order to correct or prevent a miscarriage of justice. In a revision the main question to be considered is whether substantial justice has been done or will be done and whether any order made by the lower court should be interfered with in the interest of justice…If we have been entrusted with the responsibility of a wide discretion, we should be the last to attempt to fetter that discretion…This discretion, like all other judicial discretions ought, as far as practicable, to be left untrammeled and free, so as to be fairly exercised according to the
exigencies of each case”.
The position was amplified in Machaki & Another Vs Republic (Criminal Revision E126 of 2024 [2024] KEHC 12838 (KLR) where Justice L. Njuguna stated that the purpose of exercising the court’s revisionary power is to examine the correctness and the propriety of the trial courts order.
The court has been urged by the applicant to consider that the Director of Public Prosecutions ignored their concern in taking the decision to withdraw the criminal case and that the learned honorable magistrate made an irregular order in allowing the Director of Public Prosecutions to withdraw the matter in the face of the material they placed before the court.
It is important to state here that the court has its scope defined by the law. It can only examine the record to satisfy itself as to the correctness, legality or propriety of the order by the learned Honorable Magistrate.
The Ruling by the learned Honorable magistrate was made on 7 th August 2025.
The complainant’s letter to the Director of Public Prosecutions copied to the court is dated the 28 th July 2025 and was filed in court electronically on 29/7/2025 at 16:55 p.m.
The trial court on 30/7/2025 heard the application for withdrawal and MR. Musundi advocate for the applicant is indicated as having opposed the application.
The record shows that on that day the complainant applicant was ready to testify and that counsel informed the court that the decision to withdraw by the Director of Public Prosecution was made without reference to the victim.
The victim informed the court that they need to have the ruling deferred so that they could consult with the Director of Public Prosecutions since in their view there were no cogent reasons had been advanced for the withdrawal.
The court after hearing the parties reserved the matter for ruling on 7/8/2025.
The reason for the withdraw that was given by the Director of Public Prosecutions was that there is a pending Civil matter before the Environment and Land court.
The magistrate in his Ruling stated:-
“the three elements put a responsibility on the Director of Public Prosecutions to ensure that such withdrawal is done in good faith in pursuit of fairness and justice.”
The honorable magistrate went further to state:-
“The prosecution advanced the reason that after reviewing the evidence they firmed the opinion that this matter be handled at the environment and Land court. In my view that is a justifiable reason to warrant a withdrawal.”
The court went on to allow the application for withdrawal under Section 87 (a) of the Criminal Procedure Code.
It is clear from the Ruling that the learned Honorable magistrate did not make mention of the protest by the victim.
In fact, nowhere in the Ruling does he make a mention of the Provisions of Sections 20 and 21 of the Victim’s Protection Act despite the same having been placed before him. It is no doubt therefore the victims voice was drowned in the arguments about the power of the Director of Public Prosecutions to withdraw cases.
It is important to point out that no one contests the authority of the Director of Public Prosecutions to terminate or withdraw cases in exercise of his powers under Article 157 of the constitution.
The issue that keeps recurring and is at the center of this application is how that power is to be exercised in modern day Kenya. The call for transparency and accountability in the manner in which the power is exercised. The DPP like all other decisions makers is bound by the provisions of Article 47 of the Constitution in decision making. The victim just like a suspect expects some degree of fairness in the making of prosecutorial decisions.
The introduction of Article 50 (7) of the Constitution is the beginning point in addressing the place of the victim in our criminal justice system. The victim is no longer a passive participant in a criminal case. His concerns must be taken into account and decisions made about them by the courts.
The Article 50 provides:-
Fair hearing.
(1) Every person has the right to have any dispute that can be resolved by the application of law decided in a fair and public hearing before a court or, if appropriate, another independent and impartial tribunal or body.
(2) Every accused person has the right to a fair trial, which includes the right—
(a) to be presumed innocent until the contrary is proved;
(b) to be informed of the charge, with sufficient detail to answer it;
(c) to have adequate time and facilities to prepare a defence;
(d) to a public trial before a court established under this Constitution;
(e) to have the trial begin and conclude without unreasonable delay;
(f) to be present when being tried, unless the conduct of the accused person makes it impossible for the trial to proceed;
(g) to choose, and be represented by, an advocate, and to be informed of this right promptly;
(h) to have an advocate assigned to the accused person by the State and at State expense, if substantial injustice would otherwise result, and to be informed of this right promptly;
(i) to remain silent, and not to testify during the proceedings;
(j) to be informed in advance of the evidence the prosecution intends to rely on, and to have reasonable access to that evidence;
(k) to adduce and challenge evidence;
(l) to refuse to give self-incriminating evidence;
(m) to have the assistance of an interpreter without payment if the accused person cannot understand the language used at the trial;
(n) not to be convicted for an act or omission that at the time it was committed or omitted was not—
(i) an offence in Kenya;
(ii) or a crime under international law;30 Constitution of Kenya [Rev. 2022] (o) not to be tried for an offence in respect of an act or omission for which the accused person has previously been either acquitted or convicted;
(p) to the benefit of the least severe of the prescribed punishments for an offence, if the prescribed punishment for the offence has been changed between the time that the offence was committed and the time of sentencing; and
(q) if convicted, to appeal to, or apply for review by, a higher court as prescribed by law.
(3) If this Article requires information to be given to a person, the information shall be given in a language that the person understands. (4) Evidence obtained in a manner that violates any right or fundamental freedom in the Bill of Rights shall be excluded if the admission of that evidence would render the trial unfair, or would otherwise be detrimental to the administration of justice.
(5) An accused person—
(a) charged with an offence, other than an offence that the court may try by summary procedures, is entitled during the trial to a copy of the record of the proceedings of the trial on request; and
(b) has the right to a copy of the record of the proceedings within a reasonable period after they are concluded, in return for a reasonable fee as prescribed by law.
(6) A person who is convicted of a criminal offence may petition the High Court for a new trial if—
(a) the person’s appeal, if any, has been dismissed by the highest court to which the person is entitled to appeal, or the person did not appeal within the time allowed for appeal; and
(b) new and compelling evidence has become available.
(7) In the interest of justice, a court may allow an intermediary to assist a complainant or an accused person to communicate with the court.(emphasis mine)
(8) This Article does not prevent the exclusion of the press or other members of the public from any proceedings if the exclusion is necessary, in a free and democratic society, to protect witnesses or vulnerable persons, morality, public order or national security.
(9) Parliament shall enact legislation providing for the protection, rights and welfare of victims of offences.
The complainant has the right to communicate with the court in the course of proceedings. The natural and legitimate expectation is that once a complainant communicates his concerns to the court, the court would proceed to address its mind to the same and grant appropriate orders taking into account the victim’s concerns.
The concerns of the victim cannot be simply swept under the carpet as happened in this case. Times have changed and the jurisprudential terrain is awash with decisions that can guide courts in determining the rights of victims.
In the impugned ruling, the learned honorable magistrate said nothing about the request by the applicant to defer the ruling to allow consultation with the Director of Public Prosecutions. The action by the magistrate was improper, incorrect and irregular considering the provisions of the law on victim rights.
Section 20 of the Victims Protection Act provides;-
Right to submit information
(1)A victim has a right to submit any information for consideration to the—(a)police or prosecution on a decision whether or not to lay a charge, or to appeal or withdrawal ;(emphasis mine)
(b)court during plea bargaining, bail hearing and sentencing;
(c)Advisory Committee on the Power of Mercy established under the Power of Mercy Act (Cap. 94), on the release or pardon of a convict.
(2) Where a victim gives any information to a law enforcement officer, the officer shall inform the victim that—
(a)the information shall be ascertained for submission to the Court;
(b)the victim shall ensure that any information that the victim gives is true; and
(c)the information may be recorded and signed by the victim.
(3) The collection of any views from a victim under this section shall not prejudice or delay any proceedings relating to the offence complained of.
The learned Honorable Magistrate should have noted that Section 20 (1) (a) of the Victims Protection Act gives the right to Victims to submit information to the police or prosecution on decision whether or not to lay a charge or to appeal or withdraw.
The request by the applicant for the ruling to be deferred was well within the law and ought to have been granted and allow the parties to return at a later date to inform the court of any developments before the court could decide on whether or not to allow the withdrawal.
The Section in essence imposes a duty upon the Law enforcement authorities i.e the police and the prosecution to seek information from victims of crime before the decision to withdraw a matter is made. Similarly, where a victim such as happened in this case gets to know of the intention to withdraw a matter, he is at liberty to submit information to then DPP who under under Articles 10, 47 and 157(11) of the Constitution is obliged to consider the information supplied, make a decision on it and inform the victim of the decision made.
The DPP is not by doing so subjugating his authority to control prosecutions to the victim but is simply acting within the Constitutional bounds of procedural fairness in decision making and reasonableness. See Associated Provincial Picture Houses Ltd vs. Wednesbury Corporation {1948} 1 K.B 223
The Section of the law having been enacted after the promulgation of the Constitution of Kenya 2010, it must have been intended to ensure that victim’s rights interests and concerns in the Criminal justice process are not casually overlooked in the making of the decision whether or not to charge any person or to withdraw any matter once the same has been initiated in court in line with Articles 10 and 50 (7) of the Constitution. The magistrate therefore erred in failing to allow the victim to consult with the DPP.
It is important to point out for the avoidance of doubt that the Director of Public Prosecutions would still retain his decisional independence as expressed under Article 157 (10) of the Constitution.
It would appear to me that Section 20 of the Victims Protection Act was intended to promote transparency and accountability in making prosecutorial decisions and further the participation of victims in the trial processes.
The Supreme Court had occasion to consider the place of victims in our criminal justice system in Waswa v Republic (Petition 23 of 2019) [2020] KESC 23 (KLR) (4 September 2020) (Judgment). The court had the following to say;-
‘67. The trial court being an impartial entity that oversees the progress of a case, has the ultimate function of determining the accused''s guilt or innocence. Its aim is to establish the truth. The purpose of criminal proceedings, generally speaking, is to hear and determine finally whether the accused has engaged in conduct which amounts to an offence and, on that account, is deserving of punishment. Thus, the rights of the accused cannot be considered in isolation without regard to those of the victim. Victims too have a legitimate interest in the court’s exercise of its jurisdiction. The Criminal Justice System should cultivate a process that inspires the trust of both the victim and the accused.
68.Considering the rights of the accused, the victim, and society as a whole in a criminal trial is not only fair, pragmatic but also constitutionally viable. This has been acknowledged in various jurisdictions. In Attorney-General’s Reference (No. 3 of 1999) [2001] 2 AC 91 [118], the House of Lords was dealing with a question of law involving the proper construction of section 64(3B) of the Police and Criminal Evidence Act 1984. One of the issues that came for consideration was fairness of a trial. Lord Steyn observed:“The purpose of the criminal law is to permit everyone to go about their daily lives without fear of harm to person or property. And it is in the interests of everyone that serious crime should be effectively investigated and prosecuted. There must be fairness to all sides. In a criminal case this requires the court to consider a triangulation of interests. It involves taking into account the position of the accused, the victim and his or her family, and the public.”
69.This decision was cited with approval by House of Lords in R v H [2004] 2 AC 134. Herein, the Lords made pertinent observations on ‘a fair trial’. They noted at paragraph 11 that ‘fairness is a constantly evolving concept’ and that ‘it is important to recognise that standards and perceptions of fairness may change, not only from one century to another but also, sometimes, from one decade to another’. They observed that although the focus of article 6 of the European Convention is on the right of a criminal defendant to a fair trial, this has to be exercised within the framework of the administration of the criminal law and ‘requires that the trial process, viewed as a whole, must be fair’. They noted at paragraph 12 that ‘the European Court has repeatedly recognised that individual rights should not be treated as if enjoyed in a vacuum’ in its decisions in Sporrong and Lönnroth v Sweden (1982) 5 EHRR 35, 52, para 69; Sheffield and Horsham v United Kingdom (1998) 27 EHRR 163, 191, para 52.
70.We agree with these sentiments. The trial Judge must protect the rights of all parties involved in criminal proceedings. There is a public interest in ensuring that trials are fair. This interest can be served by safeguarding the rights of the accused, the objectivity of the prosecution and, by acknowledging the victim’s interest. The rights of the accused should be secured and fulfilled. So too the public interest. The rights of victims, properly understood, do not undermine those of the accused or the public interest. The true interrelationship of the three is complementary.
85. The law on the rights of victims
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