Background
1. The accused persons Adelbert Omuya and Brian Nyamiteri alias Wajakoya were charged and convicted of murder contrary to section 203 as read together with section 204 of the penal code.
2. The matter was brought before court for plea , the information was read to them and they pleaded not guilty and the matter set out for hearing as they were released on a bond of 500,000 pending further pre-trial directions.
3. On 20.5.2025 , the matter came up for mention when the states presented a Nolle prosequi dated 19.5.25. under Section 157 (6) (c)(, 157 (9) of the Constitution of Kenya and Section 82 of the Criminal procedure Code . The same is based on the ground that they have a child witness who was coerced to record a statement .
Article 157. (1) There is established the office of Director of Public Prosecutions.
(2) 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) take over and continue any criminal proceedings commenced in any court (other than a court martial) that have been instituted or undertaken by another person or authority, with the permission of the person or authority; and
(7) The Director of Public Prosecutions may not discontinue a prosecution without the permission of the court.
66. 4. Power of Director of Public Prosecutions to enter nolle prosequi
(1) In any criminal case and at any stage thereof before verdict or judgment, as the case may be, the Director of Public Prosecutions may enter a nolle prosequi, either by stating in court or by informing the court in writing that the Republic intends that the proceedings shall not continue, and thereupon the accused shall be at once discharged in respect of the charge for which the nolle prosequi is entered, and if he has been committed to prison shall be released, or if on bail his recognizances shall be discharged; but discharge of an accused person shall not operate as a bar to subsequent proceedings against him on account of the same facts.
4. From the above provisions, it is clear that while the DPP has the discretion to enter a nolle prosequi in criminal proceedings, that discretion is subject to the supervision by the court which has a duty to ensure that there is no abuse of legal process, mala fides, misuse of the power. In the case of Moses Miheso Lipeya V Republic [2007] eKLR Justice G.B.M. Kariuki (as he then was) observed: -
"I think the hearing of a criminal case where the prosecution unfairly uses its power under the law to oppress or undermine the rights of the accused cannot be said to be a fair hearing even if it be conducted within a reasonable time."
The judge referred to the case of Harrison Auko V Republic (H.C. Misc. Cr. Application No. 55 of 2006 (Kakamega) (unreported), wherein it was held that the Attorney General;
“is expected to exercise his power to enter nolle prosequi for the public good, and in good faith. In short, his action is expected to promote public interest.”
And further that:
“… The court is enjoined to impeach its use if and where it is exercised in bad faith, oppressively, capriciously, or for interest antithetical to public good. This court’s supervisory power is derived from sections 60 and 123 (8) of the Constitution. Both the letter and the spirit of the Constitution demonstrate that the fundamental rights and freedoms of the individual enshrined in Chapter V of the Constitution which include the right to fair trial within a reasonable time (section 77 (1) of the Constitution) are designed to be protected by the High Court in its supervisory role. The High Court has inherent power to prevent abuse both of the exercise of the power conferred on the Attorney General by section 82 of the CPC and of abuse of process of court. The discretionary power can only be exercised where the Attorney General acts in good faith and in public interest or for the public good. If and where it is shown that the exercise of power to enter nolle prosequi under section 82 (supra) was in bad faith, or was oppressive, or capricious or against public interest, the High Court would be entitled to intervene to challenge, not the Attorney General’s power to enter nolle prosequi, but rather the use of that power.”
5. In the case of Naibei Gerishom Kisach V Republic [2011] eKLR the court dismissed an application for nolle prosequi as it deemed that the use of that power was prejudicial to the petitioner’s right to a fair trial. Azangalala J. (as he then was) held: -
“The Attorney General was exercising his powers to enter the nolle prosequi not in good faith but oppressively, capriciously and was probably influenced by irrelevant considerations.”
6. In the instant case, it has been pending in court since 2024. Not even a single prosecution witness has testified in the case for the reason that the prosecution has been unable to trace their witnesses especially the key witness who is reported to be a minor whose mother revealed through an affidavit that the children were coerced to be adduce evidence and that this was also a case of mob justice . Under the circumstances and taking cognizance of the fact that Article 157 of the constitution envisages the fact that discontinuance of a criminal trial can take place at any stage of the trial and further being cautious to balance the interests of the accused persons , the victims and the state , I am of the humble view that keeping this case pending in court, in the face of the obvious challenges faced by the prosecution in securing the attendance of their witnesses in court, would serve no useful purpose whatsoever. I am also of the view that the application has been made in good faith and I find that there is no violation of the accused persons' rights under Article 47 and 50 of the Constitution. No material has been placed before me to show that the DPP, in seeking
7. I have considered the application by the DPP. Article 157 (6)(c) of the constitution empowers the director of the office public prosecution to discontinue any stage before delivery of judgement, with the permission of the court article 157 (8) further requires the DPP provides reasons when discontinuing a case where the accused has already been placed on trial. In the present case, the DPP has complied with the constitutional and statutory requirements. there is no evidence of bad faith, abuse of process or prejudice to the accused that would warrant this court to decline the request. In the circumstances I allow the Nolle Prosequi in the interest of justice .i proceed to make the following orders ;
ORDERS
a. The Nolle Prosequi entered by the director of public prosecution is hereby allowed.
b. The accused persons Adelbert omuya and Brian Nyamiteri alias Wajakoya are hereby discharged from these proceedings.
c. Accused be released forthwith Unless otherwise lawfully held.
T.A ODERA
JUDGE
18.6.25
DELIVERD IN OIPEN COURT ON THIS 18TH DAY OF JUNE 2025 IN THE PRESENCE OF :
ACCUSED, MR KOIMA FOR PROSECUTION AND CA : KIPCHIRCHIR
1. The accused persons Adelbert Omuya and Brian Nyamiteri alias Wajakoya were charged and convicted of murder contrary to section 203 as read together with section 204 of the penal code.
2. The matter was brought before court for plea , the information was read to them and they pleaded not guilty and the matter set out for hearing as they were released on a bond of 500,000 pending further pre-trial directions.
3. On 20.5.2025 , the matter came up for mention when the states presented a Nolle prosequi dated 19.5.25. under Section 157 (6) (c)(, 157 (9) of the Constitution of Kenya and Section 82 of the Criminal procedure Code . The same is based on the ground that they have a child witness who was coerced to record a statement .
Article 157. (1) There is established the office of Director of Public Prosecutions.
(2) 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) take over and continue any criminal proceedings commenced in any court (other than a court martial) that have been instituted or undertaken by another person or authority, with the permission of the person or authority; and
(7) The Director of Public Prosecutions may not discontinue a prosecution without the permission of the court.
66. 4. Power of Director of Public Prosecutions to enter nolle prosequi
(1) In any criminal case and at any stage thereof before verdict or judgment, as the case may be, the Director of Public Prosecutions may enter a nolle prosequi, either by stating in court or by informing the court in writing that the Republic intends that the proceedings shall not continue, and thereupon the accused shall be at once discharged in respect of the charge for which the nolle prosequi is entered, and if he has been committed to prison shall be released, or if on bail his recognizances shall be discharged; but discharge of an accused person shall not operate as a bar to subsequent proceedings against him on account of the same facts.
4. From the above provisions, it is clear that while the DPP has the discretion to enter a nolle prosequi in criminal proceedings, that discretion is subject to the supervision by the court which has a duty to ensure that there is no abuse of legal process, mala fides, misuse of the power. In the case of Moses Miheso Lipeya V Republic [2007] eKLR Justice G.B.M. Kariuki (as he then was) observed: -
"I think the hearing of a criminal case where the prosecution unfairly uses its power under the law to oppress or undermine the rights of the accused cannot be said to be a fair hearing even if it be conducted within a reasonable time."
The judge referred to the case of Harrison Auko V Republic (H.C. Misc. Cr. Application No. 55 of 2006 (Kakamega) (unreported), wherein it was held that the Attorney General;
“is expected to exercise his power to enter nolle prosequi for the public good, and in good faith. In short, his action is expected to promote public interest.”
And further that:
“… The court is enjoined to impeach its use if and where it is exercised in bad faith, oppressively, capriciously, or for interest antithetical to public good. This court’s supervisory power is derived from sections 60 and 123 (8) of the Constitution. Both the letter and the spirit of the Constitution demonstrate that the fundamental rights and freedoms of the individual enshrined in Chapter V of the Constitution which include the right to fair trial within a reasonable time (section 77 (1) of the Constitution) are designed to be protected by the High Court in its supervisory role. The High Court has inherent power to prevent abuse both of the exercise of the power conferred on the Attorney General by section 82 of the CPC and of abuse of process of court. The discretionary power can only be exercised where the Attorney General acts in good faith and in public interest or for the public good. If and where it is shown that the exercise of power to enter nolle prosequi under section 82 (supra) was in bad faith, or was oppressive, or capricious or against public interest, the High Court would be entitled to intervene to challenge, not the Attorney General’s power to enter nolle prosequi, but rather the use of that power.”
5. In the case of Naibei Gerishom Kisach V Republic [2011] eKLR the court dismissed an application for nolle prosequi as it deemed that the use of that power was prejudicial to the petitioner’s right to a fair trial. Azangalala J. (as he then was) held: -
“The Attorney General was exercising his powers to enter the nolle prosequi not in good faith but oppressively, capriciously and was probably influenced by irrelevant considerations.”
6. In the instant case, it has been pending in court since 2024. Not even a single prosecution witness has testified in the case for the reason that the prosecution has been unable to trace their witnesses especially the key witness who is reported to be a minor whose mother revealed through an affidavit that the children were coerced to be adduce evidence and that this was also a case of mob justice . Under the circumstances and taking cognizance of the fact that Article 157 of the constitution envisages the fact that discontinuance of a criminal trial can take place at any stage of the trial and further being cautious to balance the interests of the accused persons , the victims and the state , I am of the humble view that keeping this case pending in court, in the face of the obvious challenges faced by the prosecution in securing the attendance of their witnesses in court, would serve no useful purpose whatsoever. I am also of the view that the application has been made in good faith and I find that there is no violation of the accused persons' rights under Article 47 and 50 of the Constitution. No material has been placed before me to show that the DPP, in seeking
7. I have considered the application by the DPP. Article 157 (6)(c) of the constitution empowers the director of the office public prosecution to discontinue any stage before delivery of judgement, with the permission of the court article 157 (8) further requires the DPP provides reasons when discontinuing a case where the accused has already been placed on trial. In the present case, the DPP has complied with the constitutional and statutory requirements. there is no evidence of bad faith, abuse of process or prejudice to the accused that would warrant this court to decline the request. In the circumstances I allow the Nolle Prosequi in the interest of justice .i proceed to make the following orders ;
ORDERS
a. The Nolle Prosequi entered by the director of public prosecution is hereby allowed.
b. The accused persons Adelbert omuya and Brian Nyamiteri alias Wajakoya are hereby discharged from these proceedings.
c. Accused be released forthwith Unless otherwise lawfully held.
T.A ODERA
JUDGE
18.6.25
DELIVERD IN OIPEN COURT ON THIS 18TH DAY OF JUNE 2025 IN THE PRESENCE OF :
ACCUSED, MR KOIMA FOR PROSECUTION AND CA : KIPCHIRCHIR