MIS APP E184 0F 2024
The Applicant has applied for revision of the lower court’s ruling made on 17/09/24 acquitting the accused under section 87(b) following an application lodged by the DPP to withdraw the charges against the accused under section 87(b) of the Criminal Procedure Code.
On 26th August 2024, the DPP applied to withdraw the charges against the Accused Person under section 87(b) of the Criminal Procedure Code vide a letter dated 9th August, 2024 which was served upon Counsel watching brief for the Applicant on the very same 26th August, 2024 in Court. Both Counsel for the Accused Person and Counsel watching brief for the Applicant OPPOSED the application by the DPP for withdrawal
of the charges.The Applicant also, protested the withdrawal in a letter dated 26th August, 2024 served upon the DPP.
Vide a Ruling delivered on 17th September, 2024 the Magistrate’s Court in Mombasa Criminal Case No E344 of 2023 allowed the DPP’sapplication to withdraw the case and acquitted the Accused Person therein.
Pursuant to Article 165(6&7) of the Constitution of Kenya, 2010 the Applicant now seeks a Revision of the Ruling delivered on 17th September, 2024 for the following reasons:-
- The impugned Ruling violates the Applicant’s inviolable right to access justice and right to a fair trial under Articles 25 (c), 48 and 50(1) of the Constitution of Kenya, 2010 together with the Section 20(1) of the Victims Protection Act No 17 of 2014 in so far as the 1st Respondent applied to withdraw the charges without first, considering the Applicant’s views on the withdrawal.
- The impugned Ruling contravenes the doctrine of stare decisis in so far as the Learned Trial Magistrate failed to adopt the ratio decidendi of a binding precedent of the High Court in Nairobi Criminal Revision No E003 of 2024, DPP v Charles Kiprotich Tanui & 2 Others which Counsel watching brief for the Applicant referred the Court to.
- The Learned Trial Magistrate failed to consider in the Ruling, the oral submissions made by both Counsel for the Accused Person and Counsel watching brief for the Applicant, both of whom opposed the 1st Respondent’s application to withdraw the case.
- The timing of the withdrawal application by the 1st Respondent was extremely suspect, noting that the withdrawal application was made after the Accused Person had been placed on her defence and in fact, made on the very day the matter was scheduled for defence hearing. If at all there was any bona fides in the withdrawal, the same could have been done earlier.
This is a peculiar case whereby even after acquittal, the Accused still insists that she should have been allowed to have her day in court in full.
Whereas the DPP has authority to terminate a criminal case at any stage before judgment is delivered based on article 157(6) and (8) of the COK, 2011, the power is however subject to court permission and should be exercised with consideration to public interest and the proper administration of justice. Public interest in this sense is to ensure that the decision does not abuse the legal process.
The High Court has severally addressed this issue and certain principles have emerged including the 3 part test as set out in the cases of R-Vs- Simon Okoth (2017) e KLR and R-VS-Enock Wekesa & Anor. (2010) e KLR , viz;
- Test decision of DPP against public interest
- Interest in the admin of justice
- Need to avoid abuse of the legal process
The court can review DPP’s decision for rationality and procedural infirmities
In the present case , the conduct of the DPP’s office has not been consistent. They made the decision to charge after analysing the evidence and had the accused person arraigned in court. I note that from the plea date, the case was conducted by not one but two very competent prosecutors from the DPP. A total of 5 witnesses testified and the first 3 were the police officers. Theyse were followed by the complainant and eventually the court placed the acused person on her defence.
The application to withdraw the case was made on the date the accused person was to give her defence and the complainant objected on the grounds that they had not been consulted. On the other hand the accused person objected on the grounds thst those were not the instructions they had been given. This would imply that they had been consulted and and were aware of the changes.
The DPP on their part say it was as a result of a routine reveiw and they are afraid that it may result into an unjustified conviction since there were no civillian eye witnesses. Their letter was very detailed citing all the statutory and constitutional provisions as well as the case law.
I agree that the DPP has the mandate to make such a decision and the courts should not be fast to interfere with how they operate unless there are circumstances that show that the mandate was not exercised in the proper manner.
In this case, one must ask, when did they realise that the key witnesses were police officers and what test was used to check the credibility or otherwise of these police officers? Does it mean that police officers are incopetent witnesses ?Then is the decision to convict or otherwise not a judicial function? Why are they jumping the gun and do they doubt the competency of the court?
I note that the matter has been handled by two Chief Magistrates who are qualified to evaluate the evidence . Like Judge Sifuna, I find that this withdrawal was willy- nilly and made at the tail end of the case leading to an acquital of the accused person and leaving no chance for the victim.
That decision does not appear to be in the interest of justice and it appears to be a final judicial decision.
Accordingly I find that the decision to uphold the withdrawal to be improper and hence the application has merit and is allowed.
The Order allowing the withdrawal of the case in The Magistrate’s Court in Mombasa Criminal Case No E344 of 2023 is hereby reviewed and set aside. The matter matter to proceed to full trial. It should be mentioned before the trial court to fix a date.
No orders as to costs.