INTRODUCTION
1. The applicant by way of an Amended Notice of Motion dated 21 st October 2025 expressed to be brought under Articles 22, 47, 50(1), 159 (1) & (2) 165 (3)(6)& (7) of the Constitution of Kenya, sections 87A, 362; 364 of the CPC; and sections 3, 4, 5,7 and 9 of the Fair Administration Act, 2015 and all the enabling provisions of the Law, moved this court challenging a Ruling by the learned Honorable Magistrate in Milimani CM’s Court Criminal Case Number MCCR/E817 of 2024 Rep. Vs Ramesh Varsani allowing the prosecution to withdraw the proceedings under Section 87(a) of the Criminal Procedure Code.
2. The application sought the following orders:
i. Spent.
ii. THAT the honourable court do exercise its discretion in revision of the ruling by the Hon.R. M Ndombi (P.M) made on the 2nd September, 2025 wherein the said magistrate acquitted discharged the 1st Respondent under Section 87A of CPC.
iii. THAT the honourable court do set aside the order of acquittal discharge of the 1st Respondent in CMCR E817 of 2024 and that the order be substituted with an order of reinstatement of the said criminal case.
iv. THAT an order directing that the trial proceeds before any other Magistrate other than Hon. R. M Ndombi (P.M).
3. The application was premised on the following grounds:-
a. The 1st Respondent was the Applicant's business partner and it is the Applicant's case that he was occasioned a loss of over Kshs 110 Million in 2021 when he was suffering from cancer and he had to proceed to India for treatment.
b. The Applicant has cooperated with the Investigating officer in this matter since its inception and has always been ready to provide additional documents if requested.
c. The Applicant had a legitimate expectation that the 2nd Respondent will be impartial and exercise its constitutional rights without favorism.
d. It is clear from the contents of the 2nd Respondent’s letter dated the 1st of August 2025 that it was misled which led to the 2nd Respondent coming up with the flawed conclusion that there is insufficient evidence in the file and that the current matter is about accounts and ought be solved as a civil matter and not criminal.
e. The actions of the 1st Respondent points to stealing by director and fraudulent activities which squarely lie under criminal jurisdiction.
f. The Applicant assets that as a complainant and/or the victim herein, the 2nd Respondent owes him a duty to at least inform him which was not the case herein.
g. The Complainant made a complaint in pursuit for Justice and it is only just and fair that he gets audience from the Honourable Court as envisaged in the Constitution and the Fair Adminstrative Act.
h. The Applicant has suffered irreparably as he is still battling cancer and he believes that the 1st Respondent gave false fabrications and fictitious deceptions which led to the outcome of the letter dated 1st August, 2025.
i. The Applicant notes that the letter greatly mentions ADR which is a form of dispute resolution mechanism. The same has been attempted by the Applicant and the 1 Respondent which collapse. It is unfair to force the parties to follow a path which has previously not yielded fruits.
j. Section 193A of the Criminal Procedure Code allows both Civil and Criminal Cases to run concurrently which should be the case herein.
k. The 2nd Respondent ought to use its powers judicially and its discretion should be in accordance with the law. In the current case, the Applicant avers that the said discretion was excessive and prejudicial to the Applicant.
l. That it is in the interest of justice and fairness that the application annexed herewith is placed before the Honourable Court on priority and the orders sought are granted.
m. That it is in the interest of justice and fairness that the orders sought are granted.
4 . The Notice of Motion was further supported by the affidavit of RAVJI JADVA VARSANI who deponed that;-
1. he was the complainant in the criminal case that was withdrawn.
2. that the 1st Respondent was his business partner and he occasioned him and the Company a loss of over Kshs 110 Million in 2021 when he was suffering from cancer and had to proceed to India for treatment in 2021.
3. that he cooperated with the Investigating officer in this matter since its inception and that he was always ready to provide additional documents if requested.
4. that he had been informed by the 2nd Respondent that the evidence on board was watertight and could lead to a conviction hence the charges were approved and the 1st Respondent took plea.
5. THAT he had a legitimate expectation that the 2nd Respondent would be impartial and exercise its constitutional rights without favourism.
6. THAT It is clear from the contents of the 2nd Respondent letter dated the 1st of August 2025 that the 2 nd respondent was misled which led to him coming up with the flawed conclusion that there is insufficient evidence in the file and that the current matter is about accounts and ought be solved as a civil matter and not criminal.
7. that the actions of the 1" Respondent point to stealing and fraudulent activities which squarely lie under criminal jurisdiction.
8. that he believes that as the complainant and/or the victim herein, the 2nd Respondent owed him a duty to at least inform me of the decision to review and note my comments as much as they have the ultimate decision, which was not the case herein.
9. that on the 2nd September, 2025 the trial Court rubberstamped the 2 nd respondent’s position by acquitting/ discharge of the 1st Respodent under Section 87A and in accordance with Article 157(8).
10. that he had made the complaint in pursuit for Justice and it is only just and fair that he gets audience from the Honourable Court as envisaged in the Constitution and the Fair Administrative Act.
11. that he has suffered irreparably financially and healthwise since he is battling cancer and he believes that the 1s Respondent gave false fabrications and fictitious deceptions which led to the outcome of the letter dated 1st August, 2025.
12. that the letter greatly mentions ADR which is a form of dispute resolution mechanism. The same has been attempted by the parties at family level which collapsed. It is thus unfair to force the parties to follow a path which has previously not yielded fruits.
13. THAT the 1st Respondent through fraudulent means attempted to remove him from the Company's register with BRS, transferred Company funds to Canada and used the same funds without his knowledge hence defrauding the Company. All his signatures were forged and approval done without his knowledge.
14. that he is advised by his Advocates that Section 193A of the Criminal Procedure Code allows both Civil and Criminal Cases to run concurrently which should be the case herein.
15. he further deponed that, the Facts in the Civil case and the criminal case are totally different.
16. that he believes that the 2nd Respondent ought to use his powers judicially and his discretion should be in accordance with the law.
17. further, he went on to depone that in the current case, he has all reasons to believe that the said discretion was excessive and prejudicial to me.
18. that they have attempted ADR before, through family and a professional Mediator but the same collapsed.
1 ST RESPONDENT’S REPYLING AFFIDAVIT
5. The 1st Respondent, Ramesh Varsani, avers that he is fully conversant with the facts of the matter and has been duly advised by his advocates, Messrs. Jafarali & Company Advocates, on the legal issues arising therein.
6. Upon consideration of the Application, including the Certificate of Urgency, the Notice of Motion, the Supporting Affidavit, and the annexures thereto, he contends that the Application is devoid of merit, frivolous, vexatious, and amounts to an abuse of the court process.
7. The 1st Respondent disputes the Applicant’s assertion that the Office of the Director of Public Prosecutions (ODPP) failed to consider the evidence before recommending withdrawal of the criminal charges.
8. He states that the ODPP’s decision followed a comprehensive review of the evidence, as confirmed in its letter dated 1st August 2025 addressed to the Directorate of Criminal Investigations (DCI).
9. According to the said letter, the ODPP, upon fresh analysis of the facts, determined that there was no certainty regarding the specific amount allegedly stolen and that the available evidence did not support the charges nor present a realistic prospect of conviction.
10. He further deposes that the Applicant’s claim that the ODPP relied on a one-sided account is contradictory, noting that it was the Applicant’s own complaint and evidence that initially led to the institution of criminal proceedings.
11. The 1st Respondent maintains that the ODPP acted within its constitutional and statutory mandate under Article 157 of the Constitution and Section 87(a) of the Criminal Procedure Code when it reviewed and subsequently withdrew the charges, relying on the same body of evidence.
12. He adds that the Applicant was duly informed of the review process and was afforded an opportunity to respond before the ODPP reached its final decision.
13. The 1st Respondent further states that in discharging him from the criminal proceedings, the trial court considered submissions from all parties, including the Applicant’s counsel, and concluded that not all financial disputes between company directors amount to criminal conduct.
14. The court expressed the view that the dispute was more appropriately suited for determination in a civil forum.
15. He avers that although the law permits concurrent civil and criminal proceedings, such practice is discouraged where the dispute is predominantly civil in nature and where the evidence does not meet the threshold required to sustain criminal charges.
16. He further asserts that the Applicant has misrepresented the facts by suggesting that the issues in the criminal case differ from those in the civil suit, namely Milimani HCCOM E487 of 2023.
17. According to the 1st Respondent, both proceedings arise from the same dispute, as evidenced by the Applicant’s own statement to the DCI and the pleadings in the civil suit, wherein allegations of misappropriation and sale of company assets form the basis of a derivative claim.
18. The 1st Respondent categorically denies all allegations of theft, fraud, or any criminal wrongdoing, maintaining that such matters are properly subject to determination in the ongoing civil proceedings through accounting and examination of company records.
19. He emphasizes that the existence of a charge sheet does not constitute proof of guilt. He further contends that the Applicant’s invocation of the criminal justice system is a calculated attempt to exert pressure on him in the civil suit.
20. He asserts that the Applicant’s right to a fair hearing has not been infringed, as the Applicant continues to pursue and benefit from available civil remedies.
21. While expressing sympathy for the Applicant’s medical condition, the 1st Respondent denies any causal link between the said condition and his actions or those of the ODPP.
22. He also discloses that the Applicant is his brother and former business partner, and that efforts were made to resolve the dispute amicably, including participation in court-annexed mediation, which ultimately failed due to the Applicant’s lack of cooperation and confrontational conduct.
23. The 1st Respondent clarifies that he was not acquitted as alleged by the Applicant, but rather discharged following withdrawal of the charges under Section 87(a) of the Criminal Procedure Code, after which the cash bail deposited was duly refunded.
24. In conclusion, the 1st Respondent maintains that the Application is misconceived, ill-advised, and an abuse of the court process.
25. He reiterates that the ODPP acted lawfully within its mandate, that the trial court properly considered all relevant submissions, that the dispute in question is fundamentally civil in nature and already subject to ongoing civil proceedings, and that the Applicant has adequate alternative remedies available. Accordingly, he prays that the Application dated 11th September 2025 be dismissed with costs.
APPLICANT’S SUBMISSIONS
26. The Applicant contends that the 1st Respondent, who was his business partner, caused him a loss exceeding KShs 110 million in 2021 during a period when the Applicant was undergoing cancer treatment in India.
27. Following a formal complaint by the Applicant, the 1st Respondent was arrested and charged.
28. The Applicant contends that he had a legitimate expectation that the 2nd Respondent would act impartially but alleges that the 2nd Respondent was misled by the 1st Respondent, resulting in a flawed conclusion that the matter was primarily commercial and should be addressed civilly.
29. The Applicant submits that the 1st Respondent’s actions constitute criminal offences, including stealing by a director and fraudulent activity, squarely within the criminal jurisdiction.
Legal Threshold for Revision:
30. The Applicant submits that this Court possesses revisionary jurisdiction under Articles 165(6) and (7) of the Constitution, with Section 362 of the Criminal Procedure Code empowering the High Court to call for records of any criminal proceedings before a subordinate court to assess their correctness, legality, or propriety.
31. The Applicant challenges the Subordinate Court’s discharge of the 1st Respondent, asserting that the decision was predicated on misdirection as reflected in the letter dated 1st August, 2025.
32. Reliance was placed on the case of Prosecutor vs Stephen Lesinko (2018) KLR, where Nyakundi J. established guiding principles for exercise of revisionary jurisdiction, including where: the decision is grossly erroneous; there is non-compliance with law; findings of fact are unsupported or based on misreading evidence; material evidence is ignored; or judicial discretion is exercised arbitrarily.
33. The Applicant asserts that the decision to withdraw the matter under Section 87A CPC was grossly erroneous, noting that the Magistrate did not interrogate the matter nor require evidence to justify withdrawal, relying solely on the letter dated 1st August, 2025. This, according to the Applicant, occasioned injustice.
Submissions on the Nature of the Offence:
34. The Applicant maintains that stealing by a director is a criminal offence under the Penal Code.
35. according to him attempts at alternative dispute resolution failed, yet the 2nd Respondent emphasized ADR in the letter, disregarding the Applicant’s rights as a victim.
36. The applicant further submitted that the trial court by allowing the withdrawal of the matter permitted misuse of Section 87A CPC.
37. While acknowledging the powers of the Director of Public Prosecutions under Articles 157(6)–(10), the applicant submitted that such powers must be exercised in accordance with the broader doctrine of justice, which in this case favors the Applicant whose access to justice was denied.
38. According to the applicant the letter from the ODPP headquarters dated 1st August, 2025 failed to address the core complaint of stealing by a director, focusing instead on commercial matters, referencing unrelated civil cases, and omitting consideration of the KShs 106,000,000 loss. The Applicant submits that criminal and civil proceedings may run concurrently.
Legal Principles on Withdrawal:
39. The applicant submitted that under Section 87(a) CPC, the prosecutor may withdraw a case with the court’s consent prior to judgment, resulting in discharge, but such discharge does not bar subsequent proceedings on the same facts.
40. While the DPP enjoys independence under Article 157, any withdrawal must align with constitutional protections and justice principles. Exceptional circumstances warrant court interference, including improper, arbitrary, or ultra vires exercise of DPP powers. The Applicant asserts that the 2nd Respondent acted improperly, relying on irrelevant civil proceedings.
Role of the Victim:
41. The Applicant emphasizes the victim’s rights under Section 9 of the Victims Protection Act, 2014, including the right to be present, informed, heard, and consulted throughout the criminal process. Section 4(2)(b) of the Witness Protection Act similarly provides that victims should be given opportunity to respond before decisions affecting them are made. The Applicant avers that these rights were ignored.
42. In light of the foregoing, the Applicant submits that the threshold for granting the relief sought has been satisfied. The application should therefore be allowed, reinstating the criminal proceedings against the 1st Respondent, assigning the trial to a different magistrate, and granting costs in favour of the Applicant.
1 st RESPONDENT’S SUBMISSIONS
43. The 1st Respondent opposed the application in its entirety.
44. According to the 1 st Respondent the primary issues arising from the pleadings are fourfold;-
i). whether the revisionary jurisdiction of this Court has been properly invoked;
ii). whether the 2nd Respondent acted within his constitutional and statutory mandate in reviewing and discontinuing the charges;
iii). whether the Applicant’s rights under Articles 47 and 50 of the Constitution have been violated;
iv). whether the Applicant has demonstrated any exceptional circumstances warranting interference with the 2nd Respondent’s discretion or the trial court’s ruling.
45. In respect of the first issue, the 1st Respondent submits that the High Court’s powers under Articles 165(6) and (7) of the Constitution, read together with Sections 362 to 364 of the Criminal Procedure Code, are supervisory in nature and exist to correct illegality, impropriety, or irregularity in proceedings emanating from subordinate courts. Section 364(1) CPC specifically limits the High Court’s revisionary power in criminal cases, prohibiting the reversal of an order of acquittal through revision proceedings.
46. Revision is not a substitute for appeal, and the Applicant cannot use it to supplant the trial court’s discretion. The 1 st respondent cited the case of Cox & 2 others v Okello (Petition E001 of 2025; formerly SC Petition No. E001 of 2025) , wherein the High Court and Court of Appeal found that the applicants had improperly invoked revisionary jurisdiction to set aside an acquittal order, a procedure that is impermissible under the statutory revisionary framework.
47. The 1st Respondent submits that no illegality or irregularity arises from the 2nd Respondent’s decision or the trial court’s ruling of 5th September 2025.
48. On the second issue, the 1st Respondent contended that the 2nd Respondent acted fully within his constitutional and statutory mandate. Under Article 157(6) of the Constitution, the Director of Public Prosecutions exercises independent discretion and is not subject to direction or control by any authority.
49. The 2nd Respondent is obliged to consider public interest, the administration of justice, and the need to prevent abuse of court processes.
50. In this case, the 2nd Respondent reviewed all materials and correspondence, including submissions from the Applicant, and issued a communication dated 1st August 2025 concluding that the dispute was overwhelmingly commercial and unsuitable for criminal prosecution. This position is supported by Kashi & 3 others v ODPP & 6 others (Criminal Revision E010 of 2025) KEHC 6350 (KR) , where Justice C.M. Kariuki affirmed the ODPP’s authority to discontinue criminal proceedings with court approval in order to prevent abuse of the court process.
51. On the third issue, the 1st Respondent submitted that the Applicant’s claims of violation of Articles 47 and 50 are without merit.
52. The withdrawal of charges under Section 87(a) CPC does not violate any party’s rights, but rather terminates proceedings in favour of the accused. The Applicant was afforded ample opportunity to respond, including filing letters and participating through legal representation, with his advocate given leave to make oral submissions in opposition to the withdrawal. Procedural fairness was therefore observed.
53. On the fourth issue, the 1st Respondent submitted that interference with prosecutorial discretion occurs only in the clearest cases involving bad faith, abuse of discretion, unconstitutionality, irrationality, or unauthorized exercise of powers.
54. The Applicant had not produced any evidence of malice, impropriety, or bad faith, nor did any new evidence emerge to justify such interference.
55. In conclusion, the 1st Respondent submitted that the 2nd Respondent’s decision to discontinue the criminal proceedings, and the subsequent ruling by Hon. R.M. Ndombi, PM, were lawful, procedurally fair, and within constitutional and statutory powers of the court.
56. The Applicant has failed to demonstrate illegality, irregularity, or violation of rights, and has not met the threshold for exceptional circumstances warranting interference.
57. The 1 st respondent therefore urged the court to dismiss the application.
2 nd RESPONDENT SUBMISSIONS
58. The 2 nd respondents submitted that, the DPP had properly exercised his powers and the reasons for his decision are well documented in the letter annexed to the pleadings by the applicant.
59. The 2 nd respondent maintained that the revision application is unmerited and that the learned trial magistrate acted within the law thus her decision need not be disturbed by this court.
60. The 2 nd respondent urged this court to dismiss the application.
ANALYSIS AND DETERMINATION
61. This court has considered the application, the supporting affidavit, the replying affidavit, and supplementary affidavit, and the respective parties’ submissions. The court has also considered in detail the letter by the DPP stating the reasons for withdrawing the matter.
62. The broad issue for determination is whether the application is merited.
63. The 1 st respondent has also raised the issue of jurisdiction which is a threshold issue asking this court to determine whether the jurisdiction of this court was properly invoked in view of the Ruling by the learned Honorable Magistrate.
64. The court has reviewed the Ruling of the trial court to ascertain whether there is evidence of any illegality, incorrectness, irregularity or impropriety to justify the invocation of this court’s revisionary jurisdiction.
65. The court would only be justified to intervene if on the face of the ruling there is manifest illegality, incorrectness irregularity or impropriety. The burden of establishing this lies with the applicant and he must discharge that burden before this court can intervene.
66. The power of this court in its revisionary jurisdiction is founded under Section 362 of the Criminal Procedure Code (Cap 75) Laws of Kenya, which provides that:
“The High Court may call for and examine the record of any criminal proceedings before any subordinate court to satisfy itself with 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.’’
67. Article 165(6) of the Constitution provides that: The High Court has supervisory jurisdiction over the subordinate courts and over any person, body, or authority exercising a judicial or quasi-judicial function, but not over a superior court.
68. The supervisory jurisdiction must however be exercised in conformity with the law. The High must not intervene where the subordinate courts exercise their powers within the law because they too have a statutory and Constitutional mandate to discharge which must be respected for there was good reason in establishing the various courts under Article 162 of the Constitution.
69. The honorable magistrate in this matter heard all the parties on the application for withdrawal by the Director of Public Prosecutions.
70. The applicant through counsel made representations which were considered and the learned honorable magistrate made a determination based on the submissions by the parties.
71. The DPP under Article 157(8) of the Constitution may not terminate a matter without the permission of the court. All that is required of the DPP is to give reasons to the court presiding over the matter for the court to consider the reasons before granting that permission.
72. In this case the DPP complied with that Constitutional requirement and the parties were all granted an opportunity to be heard.
73. The court accepted the reasons and proceeded to discharge the accused person under section 87(a) of the Criminal Procedure Code.
74. Article 157 (6) of the Constitution spells out the powers and responsibilities of the office of Director of Public Prosecutions. The same provides. “The Director of Public Prosecutions shall exercise State powers of prosecution and may-
a. Institute and undertake criminal proceedings against any person before any court (other than a court martial) in respect of any offence alleged to have been committed.
b. To take over and continue any criminal proceedings commenced in any court (other than a court martial) that have been instituted or undertake by another person or authority; and subject to clauses (7) and (8), discontinue at any stage before judgment is delivered any criminal proceedings instituted by the Director of Public Prosecutions or taken over by the Director of Public Prosecutions under paragraph (b).
75. Article 157(8), on the other hand, provides that;
“The Director of Public Prosecutions may not discontinue a prosecution without the permission of the court.”
76. In seeking to discontinue a criminal case, the Director of Public Prosecutions must seek and obtain the permission of the court. The Director of Public Prosecution must show to the court tangible reasons for the discontinuation of the case. The converse being that should the Director of Public Prosecutions fail to give such reasons as would justify the intended discontinuation, then the court retains the discretion to decline the application to discontinue the case or proceedings.
77. The court by accepting the reasons advanced by the DPP in this case acted within the law and I see no illegality or impropriety in the decision of the court.
78. In fact, a reading of the affidavit of the applicant shows that the complaint by the applicant is not about the decision by the magistrate mainly but the decision of the Director of Public prosecutions whom he contends was misled in arriving at his decision. This boils down to the jurisdiction issue raised by the 1 st respondent.
79. A challenge on the manner of exercising prosecutorial discretion strictly speaking should be by way of a judicial review application or a Constitutional petition and not a Revision application.
80. A revision application focuses on the decision of the trial court thus the applicant’s application as couched is not properly before this court for it seeks a review of the decision of the DPP to terminate the proceedings .
81. It is should be pointed out that a party should carefully elect whether to approach the court by way of a revision, an appeal, a judicial review application or a Constitutional petition.
82. The reasons advanced by the DPP leading to the decision were lawful and capable of being acted upon by the trial court thus in arriving at the decision to allow the withdrawal of the matter the court did not err. The polycentric character of decisions of the DPP require that courts do not intervene without a sufficient cause and once a court is given reasons by the DPP and the court is satisfied that the reasons are good enough for the court to grant a withdrawal, the court should not unnecessarily withhold the leave or permission sought by the DPP. The Constitutional architecture of this country calls for respect of the doctrine of separation of powers thus each agency of Government once it performs its function within the law, must not be unnecessarily interfered with.
83. This court agrees with the position taken by Justice Charles Kariuki in Kashi & 3 others v ODPP & 6 others (Criminal Revision E010 of 2025) [2025] KEHC 6350 (KLR) (16 May 2025) (Ruling) where in considering a similar application held:
“In the circumstances, I do not find any improper acts on the part of the Respondent, and withdrawing the matter was within its mandate. I deem the same was done in the interest of the administration of justice and to avoid abuse of the process. The Trial Court, in allowing the Respondent’s application, correctly exercised its discretion. Such a discretion cannot be interpreted to be an illegality or impropriety on the part of the Court.
41.In conclusion, I do not find any illegality or other defects that would warrant revision under section 362 of the Criminal Procedure Code . Thus, the court makes the orders.”
84. In Mohit v. The Director of Public Prosecutions of Mauritius (Mauritius) [2006] UKPC 20 (25 April 2006) the court held:
“In Lagesse, above, the plaintiff claimed damages against the DPP for malicious prosecution and the question arose whether a plaintiff could, through an action in tort or otherwise, in effect ask a court to determine whether the DPP had acted in breach of the Constitution or any other law. Addressing this issue, the court said, with reference to section 119 of the Constitution quoted above, at p 200:
“Section 119 is not a substantive provision of the Constitution which confers, or rather creates, j
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1. The applicant by way of an Amended Notice of Motion dated 21 st October 2025 expressed to be brought under Articles 22, 47, 50(1), 159 (1) & (2) 165 (3)(6)& (7) of the Constitution of Kenya, sections 87A, 362; 364 of the CPC; and sections 3, 4, 5,7 and 9 of the Fair Administration Act, 2015 and all the enabling provisions of the Law, moved this court challenging a Ruling by the learned Honorable Magistrate in Milimani CM’s Court Criminal Case Number MCCR/E817 of 2024 Rep. Vs Ramesh Varsani allowing the prosecution to withdraw the proceedings under Section 87(a) of the Criminal Procedure Code.
2. The application sought the following orders:
i. Spent.
ii. THAT the honourable court do exercise its discretion in revision of the ruling by the Hon.R. M Ndombi (P.M) made on the 2nd September, 2025 wherein the said magistrate acquitted discharged the 1st Respondent under Section 87A of CPC.
iii. THAT the honourable court do set aside the order of acquittal discharge of the 1st Respondent in CMCR E817 of 2024 and that the order be substituted with an order of reinstatement of the said criminal case.
iv. THAT an order directing that the trial proceeds before any other Magistrate other than Hon. R. M Ndombi (P.M).
3. The application was premised on the following grounds:-
a. The 1st Respondent was the Applicant's business partner and it is the Applicant's case that he was occasioned a loss of over Kshs 110 Million in 2021 when he was suffering from cancer and he had to proceed to India for treatment.
b. The Applicant has cooperated with the Investigating officer in this matter since its inception and has always been ready to provide additional documents if requested.
c. The Applicant had a legitimate expectation that the 2nd Respondent will be impartial and exercise its constitutional rights without favorism.
d. It is clear from the contents of the 2nd Respondent’s letter dated the 1st of August 2025 that it was misled which led to the 2nd Respondent coming up with the flawed conclusion that there is insufficient evidence in the file and that the current matter is about accounts and ought be solved as a civil matter and not criminal.
e. The actions of the 1st Respondent points to stealing by director and fraudulent activities which squarely lie under criminal jurisdiction.
f. The Applicant assets that as a complainant and/or the victim herein, the 2nd Respondent owes him a duty to at least inform him which was not the case herein.
g. The Complainant made a complaint in pursuit for Justice and it is only just and fair that he gets audience from the Honourable Court as envisaged in the Constitution and the Fair Adminstrative Act.
h. The Applicant has suffered irreparably as he is still battling cancer and he believes that the 1st Respondent gave false fabrications and fictitious deceptions which led to the outcome of the letter dated 1st August, 2025.
i. The Applicant notes that the letter greatly mentions ADR which is a form of dispute resolution mechanism. The same has been attempted by the Applicant and the 1 Respondent which collapse. It is unfair to force the parties to follow a path which has previously not yielded fruits.
j. Section 193A of the Criminal Procedure Code allows both Civil and Criminal Cases to run concurrently which should be the case herein.
k. The 2nd Respondent ought to use its powers judicially and its discretion should be in accordance with the law. In the current case, the Applicant avers that the said discretion was excessive and prejudicial to the Applicant.
l. That it is in the interest of justice and fairness that the application annexed herewith is placed before the Honourable Court on priority and the orders sought are granted.
m. That it is in the interest of justice and fairness that the orders sought are granted.
4 . The Notice of Motion was further supported by the affidavit of RAVJI JADVA VARSANI who deponed that;-
1. he was the complainant in the criminal case that was withdrawn.
2. that the 1st Respondent was his business partner and he occasioned him and the Company a loss of over Kshs 110 Million in 2021 when he was suffering from cancer and had to proceed to India for treatment in 2021.
3. that he cooperated with the Investigating officer in this matter since its inception and that he was always ready to provide additional documents if requested.
4. that he had been informed by the 2nd Respondent that the evidence on board was watertight and could lead to a conviction hence the charges were approved and the 1st Respondent took plea.
5. THAT he had a legitimate expectation that the 2nd Respondent would be impartial and exercise its constitutional rights without favourism.
6. THAT It is clear from the contents of the 2nd Respondent letter dated the 1st of August 2025 that the 2 nd respondent was misled which led to him coming up with the flawed conclusion that there is insufficient evidence in the file and that the current matter is about accounts and ought be solved as a civil matter and not criminal.
7. that the actions of the 1" Respondent point to stealing and fraudulent activities which squarely lie under criminal jurisdiction.
8. that he believes that as the complainant and/or the victim herein, the 2nd Respondent owed him a duty to at least inform me of the decision to review and note my comments as much as they have the ultimate decision, which was not the case herein.
9. that on the 2nd September, 2025 the trial Court rubberstamped the 2 nd respondent’s position by acquitting/ discharge of the 1st Respodent under Section 87A and in accordance with Article 157(8).
10. that he had made the complaint in pursuit for Justice and it is only just and fair that he gets audience from the Honourable Court as envisaged in the Constitution and the Fair Administrative Act.
11. that he has suffered irreparably financially and healthwise since he is battling cancer and he believes that the 1s Respondent gave false fabrications and fictitious deceptions which led to the outcome of the letter dated 1st August, 2025.
12. that the letter greatly mentions ADR which is a form of dispute resolution mechanism. The same has been attempted by the parties at family level which collapsed. It is thus unfair to force the parties to follow a path which has previously not yielded fruits.
13. THAT the 1st Respondent through fraudulent means attempted to remove him from the Company's register with BRS, transferred Company funds to Canada and used the same funds without his knowledge hence defrauding the Company. All his signatures were forged and approval done without his knowledge.
14. that he is advised by his Advocates that Section 193A of the Criminal Procedure Code allows both Civil and Criminal Cases to run concurrently which should be the case herein.
15. he further deponed that, the Facts in the Civil case and the criminal case are totally different.
16. that he believes that the 2nd Respondent ought to use his powers judicially and his discretion should be in accordance with the law.
17. further, he went on to depone that in the current case, he has all reasons to believe that the said discretion was excessive and prejudicial to me.
18. that they have attempted ADR before, through family and a professional Mediator but the same collapsed.
1 ST RESPONDENT’S REPYLING AFFIDAVIT
5. The 1st Respondent, Ramesh Varsani, avers that he is fully conversant with the facts of the matter and has been duly advised by his advocates, Messrs. Jafarali & Company Advocates, on the legal issues arising therein.
6. Upon consideration of the Application, including the Certificate of Urgency, the Notice of Motion, the Supporting Affidavit, and the annexures thereto, he contends that the Application is devoid of merit, frivolous, vexatious, and amounts to an abuse of the court process.
7. The 1st Respondent disputes the Applicant’s assertion that the Office of the Director of Public Prosecutions (ODPP) failed to consider the evidence before recommending withdrawal of the criminal charges.
8. He states that the ODPP’s decision followed a comprehensive review of the evidence, as confirmed in its letter dated 1st August 2025 addressed to the Directorate of Criminal Investigations (DCI).
9. According to the said letter, the ODPP, upon fresh analysis of the facts, determined that there was no certainty regarding the specific amount allegedly stolen and that the available evidence did not support the charges nor present a realistic prospect of conviction.
10. He further deposes that the Applicant’s claim that the ODPP relied on a one-sided account is contradictory, noting that it was the Applicant’s own complaint and evidence that initially led to the institution of criminal proceedings.
11. The 1st Respondent maintains that the ODPP acted within its constitutional and statutory mandate under Article 157 of the Constitution and Section 87(a) of the Criminal Procedure Code when it reviewed and subsequently withdrew the charges, relying on the same body of evidence.
12. He adds that the Applicant was duly informed of the review process and was afforded an opportunity to respond before the ODPP reached its final decision.
13. The 1st Respondent further states that in discharging him from the criminal proceedings, the trial court considered submissions from all parties, including the Applicant’s counsel, and concluded that not all financial disputes between company directors amount to criminal conduct.
14. The court expressed the view that the dispute was more appropriately suited for determination in a civil forum.
15. He avers that although the law permits concurrent civil and criminal proceedings, such practice is discouraged where the dispute is predominantly civil in nature and where the evidence does not meet the threshold required to sustain criminal charges.
16. He further asserts that the Applicant has misrepresented the facts by suggesting that the issues in the criminal case differ from those in the civil suit, namely Milimani HCCOM E487 of 2023.
17. According to the 1st Respondent, both proceedings arise from the same dispute, as evidenced by the Applicant’s own statement to the DCI and the pleadings in the civil suit, wherein allegations of misappropriation and sale of company assets form the basis of a derivative claim.
18. The 1st Respondent categorically denies all allegations of theft, fraud, or any criminal wrongdoing, maintaining that such matters are properly subject to determination in the ongoing civil proceedings through accounting and examination of company records.
19. He emphasizes that the existence of a charge sheet does not constitute proof of guilt. He further contends that the Applicant’s invocation of the criminal justice system is a calculated attempt to exert pressure on him in the civil suit.
20. He asserts that the Applicant’s right to a fair hearing has not been infringed, as the Applicant continues to pursue and benefit from available civil remedies.
21. While expressing sympathy for the Applicant’s medical condition, the 1st Respondent denies any causal link between the said condition and his actions or those of the ODPP.
22. He also discloses that the Applicant is his brother and former business partner, and that efforts were made to resolve the dispute amicably, including participation in court-annexed mediation, which ultimately failed due to the Applicant’s lack of cooperation and confrontational conduct.
23. The 1st Respondent clarifies that he was not acquitted as alleged by the Applicant, but rather discharged following withdrawal of the charges under Section 87(a) of the Criminal Procedure Code, after which the cash bail deposited was duly refunded.
24. In conclusion, the 1st Respondent maintains that the Application is misconceived, ill-advised, and an abuse of the court process.
25. He reiterates that the ODPP acted lawfully within its mandate, that the trial court properly considered all relevant submissions, that the dispute in question is fundamentally civil in nature and already subject to ongoing civil proceedings, and that the Applicant has adequate alternative remedies available. Accordingly, he prays that the Application dated 11th September 2025 be dismissed with costs.
APPLICANT’S SUBMISSIONS
26. The Applicant contends that the 1st Respondent, who was his business partner, caused him a loss exceeding KShs 110 million in 2021 during a period when the Applicant was undergoing cancer treatment in India.
27. Following a formal complaint by the Applicant, the 1st Respondent was arrested and charged.
28. The Applicant contends that he had a legitimate expectation that the 2nd Respondent would act impartially but alleges that the 2nd Respondent was misled by the 1st Respondent, resulting in a flawed conclusion that the matter was primarily commercial and should be addressed civilly.
29. The Applicant submits that the 1st Respondent’s actions constitute criminal offences, including stealing by a director and fraudulent activity, squarely within the criminal jurisdiction.
Legal Threshold for Revision:
30. The Applicant submits that this Court possesses revisionary jurisdiction under Articles 165(6) and (7) of the Constitution, with Section 362 of the Criminal Procedure Code empowering the High Court to call for records of any criminal proceedings before a subordinate court to assess their correctness, legality, or propriety.
31. The Applicant challenges the Subordinate Court’s discharge of the 1st Respondent, asserting that the decision was predicated on misdirection as reflected in the letter dated 1st August, 2025.
32. Reliance was placed on the case of Prosecutor vs Stephen Lesinko (2018) KLR, where Nyakundi J. established guiding principles for exercise of revisionary jurisdiction, including where: the decision is grossly erroneous; there is non-compliance with law; findings of fact are unsupported or based on misreading evidence; material evidence is ignored; or judicial discretion is exercised arbitrarily.
33. The Applicant asserts that the decision to withdraw the matter under Section 87A CPC was grossly erroneous, noting that the Magistrate did not interrogate the matter nor require evidence to justify withdrawal, relying solely on the letter dated 1st August, 2025. This, according to the Applicant, occasioned injustice.
Submissions on the Nature of the Offence:
34. The Applicant maintains that stealing by a director is a criminal offence under the Penal Code.
35. according to him attempts at alternative dispute resolution failed, yet the 2nd Respondent emphasized ADR in the letter, disregarding the Applicant’s rights as a victim.
36. The applicant further submitted that the trial court by allowing the withdrawal of the matter permitted misuse of Section 87A CPC.
37. While acknowledging the powers of the Director of Public Prosecutions under Articles 157(6)–(10), the applicant submitted that such powers must be exercised in accordance with the broader doctrine of justice, which in this case favors the Applicant whose access to justice was denied.
38. According to the applicant the letter from the ODPP headquarters dated 1st August, 2025 failed to address the core complaint of stealing by a director, focusing instead on commercial matters, referencing unrelated civil cases, and omitting consideration of the KShs 106,000,000 loss. The Applicant submits that criminal and civil proceedings may run concurrently.
Legal Principles on Withdrawal:
39. The applicant submitted that under Section 87(a) CPC, the prosecutor may withdraw a case with the court’s consent prior to judgment, resulting in discharge, but such discharge does not bar subsequent proceedings on the same facts.
40. While the DPP enjoys independence under Article 157, any withdrawal must align with constitutional protections and justice principles. Exceptional circumstances warrant court interference, including improper, arbitrary, or ultra vires exercise of DPP powers. The Applicant asserts that the 2nd Respondent acted improperly, relying on irrelevant civil proceedings.
Role of the Victim:
41. The Applicant emphasizes the victim’s rights under Section 9 of the Victims Protection Act, 2014, including the right to be present, informed, heard, and consulted throughout the criminal process. Section 4(2)(b) of the Witness Protection Act similarly provides that victims should be given opportunity to respond before decisions affecting them are made. The Applicant avers that these rights were ignored.
42. In light of the foregoing, the Applicant submits that the threshold for granting the relief sought has been satisfied. The application should therefore be allowed, reinstating the criminal proceedings against the 1st Respondent, assigning the trial to a different magistrate, and granting costs in favour of the Applicant.
1 st RESPONDENT’S SUBMISSIONS
43. The 1st Respondent opposed the application in its entirety.
44. According to the 1 st Respondent the primary issues arising from the pleadings are fourfold;-
i). whether the revisionary jurisdiction of this Court has been properly invoked;
ii). whether the 2nd Respondent acted within his constitutional and statutory mandate in reviewing and discontinuing the charges;
iii). whether the Applicant’s rights under Articles 47 and 50 of the Constitution have been violated;
iv). whether the Applicant has demonstrated any exceptional circumstances warranting interference with the 2nd Respondent’s discretion or the trial court’s ruling.
45. In respect of the first issue, the 1st Respondent submits that the High Court’s powers under Articles 165(6) and (7) of the Constitution, read together with Sections 362 to 364 of the Criminal Procedure Code, are supervisory in nature and exist to correct illegality, impropriety, or irregularity in proceedings emanating from subordinate courts. Section 364(1) CPC specifically limits the High Court’s revisionary power in criminal cases, prohibiting the reversal of an order of acquittal through revision proceedings.
46. Revision is not a substitute for appeal, and the Applicant cannot use it to supplant the trial court’s discretion. The 1 st respondent cited the case of Cox & 2 others v Okello (Petition E001 of 2025; formerly SC Petition No. E001 of 2025) , wherein the High Court and Court of Appeal found that the applicants had improperly invoked revisionary jurisdiction to set aside an acquittal order, a procedure that is impermissible under the statutory revisionary framework.
47. The 1st Respondent submits that no illegality or irregularity arises from the 2nd Respondent’s decision or the trial court’s ruling of 5th September 2025.
48. On the second issue, the 1st Respondent contended that the 2nd Respondent acted fully within his constitutional and statutory mandate. Under Article 157(6) of the Constitution, the Director of Public Prosecutions exercises independent discretion and is not subject to direction or control by any authority.
49. The 2nd Respondent is obliged to consider public interest, the administration of justice, and the need to prevent abuse of court processes.
50. In this case, the 2nd Respondent reviewed all materials and correspondence, including submissions from the Applicant, and issued a communication dated 1st August 2025 concluding that the dispute was overwhelmingly commercial and unsuitable for criminal prosecution. This position is supported by Kashi & 3 others v ODPP & 6 others (Criminal Revision E010 of 2025) KEHC 6350 (KR) , where Justice C.M. Kariuki affirmed the ODPP’s authority to discontinue criminal proceedings with court approval in order to prevent abuse of the court process.
51. On the third issue, the 1st Respondent submitted that the Applicant’s claims of violation of Articles 47 and 50 are without merit.
52. The withdrawal of charges under Section 87(a) CPC does not violate any party’s rights, but rather terminates proceedings in favour of the accused. The Applicant was afforded ample opportunity to respond, including filing letters and participating through legal representation, with his advocate given leave to make oral submissions in opposition to the withdrawal. Procedural fairness was therefore observed.
53. On the fourth issue, the 1st Respondent submitted that interference with prosecutorial discretion occurs only in the clearest cases involving bad faith, abuse of discretion, unconstitutionality, irrationality, or unauthorized exercise of powers.
54. The Applicant had not produced any evidence of malice, impropriety, or bad faith, nor did any new evidence emerge to justify such interference.
55. In conclusion, the 1st Respondent submitted that the 2nd Respondent’s decision to discontinue the criminal proceedings, and the subsequent ruling by Hon. R.M. Ndombi, PM, were lawful, procedurally fair, and within constitutional and statutory powers of the court.
56. The Applicant has failed to demonstrate illegality, irregularity, or violation of rights, and has not met the threshold for exceptional circumstances warranting interference.
57. The 1 st respondent therefore urged the court to dismiss the application.
2 nd RESPONDENT SUBMISSIONS
58. The 2 nd respondents submitted that, the DPP had properly exercised his powers and the reasons for his decision are well documented in the letter annexed to the pleadings by the applicant.
59. The 2 nd respondent maintained that the revision application is unmerited and that the learned trial magistrate acted within the law thus her decision need not be disturbed by this court.
60. The 2 nd respondent urged this court to dismiss the application.
ANALYSIS AND DETERMINATION
61. This court has considered the application, the supporting affidavit, the replying affidavit, and supplementary affidavit, and the respective parties’ submissions. The court has also considered in detail the letter by the DPP stating the reasons for withdrawing the matter.
62. The broad issue for determination is whether the application is merited.
63. The 1 st respondent has also raised the issue of jurisdiction which is a threshold issue asking this court to determine whether the jurisdiction of this court was properly invoked in view of the Ruling by the learned Honorable Magistrate.
64. The court has reviewed the Ruling of the trial court to ascertain whether there is evidence of any illegality, incorrectness, irregularity or impropriety to justify the invocation of this court’s revisionary jurisdiction.
65. The court would only be justified to intervene if on the face of the ruling there is manifest illegality, incorrectness irregularity or impropriety. The burden of establishing this lies with the applicant and he must discharge that burden before this court can intervene.
66. The power of this court in its revisionary jurisdiction is founded under Section 362 of the Criminal Procedure Code (Cap 75) Laws of Kenya, which provides that:
“The High Court may call for and examine the record of any criminal proceedings before any subordinate court to satisfy itself with 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.’’
67. Article 165(6) of the Constitution provides that: The High Court has supervisory jurisdiction over the subordinate courts and over any person, body, or authority exercising a judicial or quasi-judicial function, but not over a superior court.
68. The supervisory jurisdiction must however be exercised in conformity with the law. The High must not intervene where the subordinate courts exercise their powers within the law because they too have a statutory and Constitutional mandate to discharge which must be respected for there was good reason in establishing the various courts under Article 162 of the Constitution.
69. The honorable magistrate in this matter heard all the parties on the application for withdrawal by the Director of Public Prosecutions.
70. The applicant through counsel made representations which were considered and the learned honorable magistrate made a determination based on the submissions by the parties.
71. The DPP under Article 157(8) of the Constitution may not terminate a matter without the permission of the court. All that is required of the DPP is to give reasons to the court presiding over the matter for the court to consider the reasons before granting that permission.
72. In this case the DPP complied with that Constitutional requirement and the parties were all granted an opportunity to be heard.
73. The court accepted the reasons and proceeded to discharge the accused person under section 87(a) of the Criminal Procedure Code.
74. Article 157 (6) of the Constitution spells out the powers and responsibilities of the office of Director of Public Prosecutions. The same provides. “The Director of Public Prosecutions shall exercise State powers of prosecution and may-
a. Institute and undertake criminal proceedings against any person before any court (other than a court martial) in respect of any offence alleged to have been committed.
b. To take over and continue any criminal proceedings commenced in any court (other than a court martial) that have been instituted or undertake by another person or authority; and subject to clauses (7) and (8), discontinue at any stage before judgment is delivered any criminal proceedings instituted by the Director of Public Prosecutions or taken over by the Director of Public Prosecutions under paragraph (b).
75. Article 157(8), on the other hand, provides that;
“The Director of Public Prosecutions may not discontinue a prosecution without the permission of the court.”
76. In seeking to discontinue a criminal case, the Director of Public Prosecutions must seek and obtain the permission of the court. The Director of Public Prosecution must show to the court tangible reasons for the discontinuation of the case. The converse being that should the Director of Public Prosecutions fail to give such reasons as would justify the intended discontinuation, then the court retains the discretion to decline the application to discontinue the case or proceedings.
77. The court by accepting the reasons advanced by the DPP in this case acted within the law and I see no illegality or impropriety in the decision of the court.
78. In fact, a reading of the affidavit of the applicant shows that the complaint by the applicant is not about the decision by the magistrate mainly but the decision of the Director of Public prosecutions whom he contends was misled in arriving at his decision. This boils down to the jurisdiction issue raised by the 1 st respondent.
79. A challenge on the manner of exercising prosecutorial discretion strictly speaking should be by way of a judicial review application or a Constitutional petition and not a Revision application.
80. A revision application focuses on the decision of the trial court thus the applicant’s application as couched is not properly before this court for it seeks a review of the decision of the DPP to terminate the proceedings .
81. It is should be pointed out that a party should carefully elect whether to approach the court by way of a revision, an appeal, a judicial review application or a Constitutional petition.
82. The reasons advanced by the DPP leading to the decision were lawful and capable of being acted upon by the trial court thus in arriving at the decision to allow the withdrawal of the matter the court did not err. The polycentric character of decisions of the DPP require that courts do not intervene without a sufficient cause and once a court is given reasons by the DPP and the court is satisfied that the reasons are good enough for the court to grant a withdrawal, the court should not unnecessarily withhold the leave or permission sought by the DPP. The Constitutional architecture of this country calls for respect of the doctrine of separation of powers thus each agency of Government once it performs its function within the law, must not be unnecessarily interfered with.
83. This court agrees with the position taken by Justice Charles Kariuki in Kashi & 3 others v ODPP & 6 others (Criminal Revision E010 of 2025) [2025] KEHC 6350 (KLR) (16 May 2025) (Ruling) where in considering a similar application held:
“In the circumstances, I do not find any improper acts on the part of the Respondent, and withdrawing the matter was within its mandate. I deem the same was done in the interest of the administration of justice and to avoid abuse of the process. The Trial Court, in allowing the Respondent’s application, correctly exercised its discretion. Such a discretion cannot be interpreted to be an illegality or impropriety on the part of the Court.
41.In conclusion, I do not find any illegality or other defects that would warrant revision under section 362 of the Criminal Procedure Code . Thus, the court makes the orders.”
84. In Mohit v. The Director of Public Prosecutions of Mauritius (Mauritius) [2006] UKPC 20 (25 April 2006) the court held:
“In Lagesse, above, the plaintiff claimed damages against the DPP for malicious prosecution and the question arose whether a plaintiff could, through an action in tort or otherwise, in effect ask a court to determine whether the DPP had acted in breach of the Constitution or any other law. Addressing this issue, the court said, with reference to section 119 of the Constitution quoted above, at p 200:
“Section 119 is not a substantive provision of the Constitution which confers, or rather creates, j
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