1. The applicant by way of a Notice of Motion dated 7 TH January 2025 expressed to be brought under Sections 362, 364, and section 175 (2) of the Criminal Procedure Code, Sections 3,4,9,13,24,25 and 26 of the Victim Protection ACT, No. 17 of 2014, Article 165 (3) (a) of the Constitution of Kenya and all the enabling provisions of the Law sought the following ORDERS: -
a). THAT this Honourable Court be pleased to call for the subordinate Court file being Criminal case Number E179 of 2023 for the purpose of revising the Order made on 13th May, 2023 withdrawing the suit.
b). THAT this Honourable Court be pleased to Order that Criminal case Number E179 of 2023 be reinstated for hearing and determination on merit.
2. The application is grounded on the affidavit of PRAVIN MAVJI PATEL and the following grounds set out on the face of the application-;-
a. The Respondent was charged before the Chief Magistrates Court at Milimani with the offence of Stealing by Director Contrary to Section 282 of the Penal Code, particulars that on the diverse dates between 5th August, 2021 and 23rd October, 2021 in Westlands Sub-County within Nairobi City County, being a Director of Elite Earthmovers Limited stole Kshs. 71,500,000/= (Seventy One Million Five Hundred Thousand Shillings) the property of Elite property of Elite Earthmovers Limited which came into his possession by virtue of his directorship to the said Elite Earthmovers Limited.
b. On Count II, the Respondent was charged with the offence of forgery contrary to Section 349 of the Penal Code; particulars that on the 10th September, 2020 at Lalji Meghji Patel and Company Limited Head Office along Mombasa Road within Nairobi City County, with intent to defraud forged Lalji Meghji Patel and Company Limited Board Resolution Purporting to be a sole signatory to account number 0102486724000 and account name Lalji Meghji Patel and Company Limited held at Standard Charted Bank Westlands Branch.
c. On Count III, the Respondent was charged with the offence of uttering a False Document Contrary to Section 353 of the Panel Code, particulars that on 7th October, 2020 at Standard Chartered Bank Westlands Branch in Westlands Sub County within Nairobi City County, knowingly and fraudulently uttered Lalji Meghji Patel and Company Limited Board Resolution purporting to be a sole signatory to account number 0102486724000, account name Lalji Meghji Patel and Company Limited held at Standard Charted Bank Westlands Branch.
3. The Respondent pleaded not guilty and was released on Bond/cash Bail and immediately thereafter, challenged his prosecution in the High Court in the Judicial Review Division in Miscellaneous Civil Application No. E049 of 2023 Republic -vs- the DPP, IG of Police, AG, the Chief Magistrates Court, Milimani Criminal Court Division ex- parte Parminder Singh Mankhu. He obtained leave to seek by way of Certiorari to quash the decision to charge him.
4. The D.P.P being the Interested party herein through Senior Assistant Director Public Prosecutions Christine Nanjala filed Grounds of Opposition to the Respondent's Judicial Review application and defended the decision to charge the Respondent based on the facts, the law and overwhelming evidence against him of forging signatures of deceased directors of Lalji Meghji Patel and Company Limited Board Resolutions and using the same to steal money meant for the project being undertaken by Elite Earthmovers Limited.
5. According to the applicant the evidence against the Respondent is overwhelming as Forensic Examiners Report of the Bank accounts of Standard Chartered Bank confirmed withdrawal or loss of the said sum of Kshs. 71,500,000/= as stated in the charge sheet and also Documents Examiners Report by DCI Experts confirmed that the Company Board Resolutions of Lalji Meghji Patel and Company Limited were forged as their Directors did not sign them as they were out of the country then in London in the United Kingdom for treatment and passed on when the Respondent forged their signatures claiming they were signed in Nairobi just before he presented them at Standard Chartered Bank and withdrew the said sums.
6. The DPP and Interested party herein duly followed the Guidelines on the Decision to Charge 2019, therefore their decision to apply to withdraw the lower Court suit on the pretext that it was Civil in nature does not hold any water as clearly, crimes were committed by the Respondent leading to the loss of money and there is evidence to the effect.
7. Vide a Judgement dated 27th October, 2023, the Respondent application in paragraph 4 above was dismissed by Honourable Justice John Chigiti.
8. According to the applicant thereafter, the Respondent embarked on a spirited extrajudicial means of harassing the Applicant in Order to have the Applicant withdraw his complaint and case in the lower Court or else he would face trumped up charges and true to his word, the Applicant was arrested severally on false claims that he had hired hit men to kill the Respondent.
9. That true to the Respondent's threats, barely one week after recording a statement at the Nairobi Regional Police Headquarters, the lower Court suit was withdrawn unceremoniously when witnesses were ready to take the stand and the Applicant was never in formed or consulted prior thereto.
10. That when the prosecution sought to withdraw the suit, it had received additional evidence from the victim and had sought to add additional Counts against the accused and the victim had been briefed on the same at the DCI Headquarters and consent for the same had been received from the ODPP, the interested party.
11. That Counsel watching brief then, with the leave of the Court, made another application seeking to have the victim be heard pursuant to section 9(2) of the Victim Protection Act 2014 and also for the victim to be allowed to adduce additional evidence.
12. That the Learned Trial Magistrate however in a ruling delivered on 13th May 2024 disallowed the application by the victim and withdrew the suit.
13. That the Learned Trial Magistrate failed to consider that the accused person was at all times during the trial, ably represented by a team of counsel and it not likely to be disadvantaged or prejudiced.
14. That similarly the Learned Trial Magistrate failed to take into account the nature of the case, the distress and repercussions to the victim and the fact that all the prosecution was at all times willing to give advance copies of all the documents and statements to the defence and sufficient time to prepare their defence.
15. That the Learned Trial Magistrate erred in failing to realize the role of the victim's lawyer and in effectively locking out the evidence by the prosecution.
16. That it is the interest of justice that this matter Honourable Court review and set aside the Ruling of the lower Court dated 13th May, 2024 as prayed.
17. The application was further supported by the affidavit of PRAVIN MAVJI PATEL the Managing Director of Elite Earthmovers Limited.
18. The deponent deposed that the Respondent was charged before the Chief Magistrates Court at Milimani with the offence of Stealing by Director Contrary to Section 282 of the Penal Code.
19. The particulars of the offence being that on diverse dates between 5th August, 2021 and 23rd October, 2021 in Westlands Sub-County within Nairobi City County, being a Director of Elite Earthmovers Limited stole Kshs. 71,500,000/= (Seventy One Million Five Hundred Thousand Shillings) the property of Elite Earthmovers Limited which came into his possession by virtue of his directorship to the said Elite Earthmovers Limited. (See annexed charge sheet marked PMP1)
20. In Count II, the Respondent was charged with the offence of forgery contrary to Section 349 of the Penal Code;
21. The particulars were that on the 10th September, 2020 at Lalji Meghji Patel and Company Limited Head Office along Mombasa Road within Nairobi City County, with intent to defraud forged Lalji Meghji Patel and Company Limited Board Resolution Purporting to be a sole signatory to account number 0102486724000 and account name Lalji Meghji Patel and Company Limited held at Standard Charted Bank Westlands Branch.
22. The applicant further deposed that in Count III, the Respondent was charged with the offence of uttering a False Document Contrary to Section 353 of the Panel Code, particulars being that on 7th October, 2020 at Standard Chartered Bank Westlands Branch in Westlands Sub County within Nairobi City County, knowingly and fraudulently uttered Lalji Meghji Patel and Company Limited Board Resolution purporting to be a sole signatory to account number 0102486724000, account name Lalji Meghji Patel and Company Limited held at Standard Charted Bank Westlands Branch.
23. The deponent went on to reiterate the grounds appearing on the face of the application.
24. The deponent further deposed that the Learned Trial Magistrate erred in failing to realize the role of the victim's lawyer and in effectively locked out the evidence by the prosecution.
25. The deponent averred that it is the interests of justice that this Honourable Court reviews and sets aside the Ruling of the lower Court dated 13th May, 2024.
26. The applicant maintained that he had brought this application in his capacity as a victim who is equally protected under the Victims Protection Act Number 7 of 2014 and that he strongly feels that justice has not been done at all. He therefore urged this court to grant the application.
RESPONDENT'S CASE
27. The respondent in this matter contended that the charges in this case were based on a complaint by Pravin Patel Mavji, who was the accused's co-director/shareholder and business partner in Elite Earth Movers Limited, which business relationship soured irredeemably over contractual disagreements at the time of the complaint.
28. After careful review of the case, the Office of the Director of Public Prosecutions on its own volition made an application to withdraw the matter pursuant to Section 87(A) of the Criminal Procedure Code for the reason that the matter in the Chief Magistrate Criminal Case No. E179 OF 2023 was of a civil nature.
29. Consequently, the trial court on 13th May 2024 issued a ruling ordering that the matter was withdrawn under Section 87(A) of the Penal Code and the Accused Person was acquitted.
30. The Victim's advocate in the firm of M/S Magare Musundi & Company Advocates filed a letter dated 22nd May 2024 seeking revision of the Ruling and Order issued on 13th May 2024 by Hon. R. Ondiek in the Chief Magistrate Criminal Case No. E179 OF 2023 pursuant to Section 362 and 364(1) (b) of the Criminal Procedure Code.
31. The Respondent/Accused herein filed a Preliminary Objection dated 20th November 2024 against the said letter seeking revision and thereafter filed his submissions dated 25th November 2024.
32. The Applicant also filed a Notice of Motion Application dated 7th January 2025 seeking revision of the Order made on 13th May 2023 withdrawing the suit in Criminal Case Number E179 OF 2023.
33. The Respondent herein filed a Replying Affidavit dated 26th May 2025 in response to both the letter dated 22nd May 2024 and the Applicant's Application dated 7th January 2025.
34. The respondent opposed this application and urged this court to decline reinstating this matter.
35. The respondent submitted that where there is a clear procedure for redress prescribed by the constitution or statute, that procedure must be strictly followed. According to the respondent the Applicant herein did not follow the required constitutional and statutory procedure. The Applicant has no role to play in commencing criminal proceedings including revisionary proceedings.
36. The respondent argued that it is the constitutional role of the Director of Public Prosecution to commence or terminate criminal proceedings against an Accused Person as provided under Article 157(6) read together with Article 157(10) of the Constitution.
37. Even in Criminal Case Number 179 of 2023, it was not the Applicant who commenced the criminal proceedings to justify him to also commence the instant revisionary proceedings against the Respondent/Accused.
38. The respondent relied on Article 157(6) of the Constitution which 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) 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 (c) subject to clause (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)."
39. Further, Article 157 (10) of the Constitution clearly states "The Director of Public Prosecutions shall not require the consent of any person or authority for the commencement of criminal proceedings and in the exercise of his or her powers or functions, shall not be under the direction or control of any person or authority"
40. It is the respondent’s submission that the office charged with commencing or terminating criminal proceedings against the Accused Person is squarely the Office of the Director of Public Prosecutions and not the victim or his advocate.
41. The respondent relied on the Criminal Appeal No. 295 of 2005: Kamau John Kinyanjui v Republic [2010] eKLR, wherein the court observed and held;
“Who is the "complainant in a criminal trial? Is he the victim of the crime?
We start from first principles and on that basis we cannot help but observe that all criminal prosecutions in Kenya, whether they be instituted by a private person or by the Attorney-General, are always headed:-
"REPUBLIC, i.e. the REPUBLIC OF KENYA Versus THE ACCUSED PERSON." It is the Republic which undertakes the prosecution for a crime on behalf of the victim of the crime and in doing so, the Republic is acting on behalf of all Kenyans. It is in the interest of all Kenyans that crime be punished and if the issue of punishing crimes was to be left to the victims of such crimes, there will be the question of whether the victims would be in a position to pay for the prosecution of the perpetrators of such crimes. To avoid such questions arising the Republic normally does the prosecution on behalf of the people and hence the title "REPUBLIC Vs. THE ACCUSED PERSON" and not THE VICTIM OF THE CRIME VS. THE ACCUSED PERSON".
42. According to the respondent when complainants/victims present their views and concerns in accordance with Section 9(2) (a) of the Victim Protection Act No. 9 of 2014, the victims are only limited to assisting the trial court to obtain a clear picture of what happened and how they suffered but not granting them prosecutorial powers of commencing or terminating criminal proceedings which powers are only donated to the Office Director of Public Prosecution by the Constitution.
43. Complainants do not have an active role in the decision to either prosecute or terminate the charges against an accused person.
44. In the case of Chigiti & another v Republic (Criminal Revision E011 of 2020) [2022] KEHC 10427 (KLR) (21 June 2022 ) (Judgment) the court observed;
"In addition, I think the complainant is on rather precarious ground in making representation as it did and arguing this matter as if they were co-prosecutors in the criminal case. The role of a complainant who is a victim was well explained by the Supreme Court when it ruled in Joseph Lendrix Waswa v Republic [2020] eKLR that victims have no active role in the prosecution of the case. The victim cannot and does not wear the hat of a secondary prosecutor. "We are of the view that the victim has no active role in the decision to prosecute, or the determination of the charge upon which the accused will finally be tried. This is the sole duty of the DPP. While the victim of a crime can participate at any stage of the proceedings as deemed appropriate by the trial Judge, a victim or his legal representative does not have the mandate to prosecute crimes on behalf of the DPP. The DPP must at all times retain control of, and supervision over the prosecution of the case. As such, the constitutional and statutory powers of the DPP to conduct the prosecution is not affected by the intervention of the victim in the process. Additionally, a victim cannot and does not wear the hat of a secondary prosecutor. When victims present their views and concerns in accord with section 9(2) (a) of the VPA, victims are assisting the trial Judge to obtain a clear picture of what happened (to them) and how they suffered, which the Judge may decide to take into account."
45. The respondent further cited the case of Ruto v Republic; Odhiambo & another (Interested Parties); Otieno (Intended Interested Party) (Miscellaneous Criminal Revision E075 of 2023) [2024] KEHC 316 (KLR) (24 January 2024) (Ruling) the court cited the supreme court case of Joseph Lintrex Waswa Case wherein the court stated:-
"We agree with this view and adopt it as the correct position in law. We are of the view that the victim has no active role in the decision to prosecute, or the determination of the charge upon which the accused will finally be tried. This is the sole duty of the DPP. While the victim of a crime can participate at any stage of the proceedings as deemed appropriate by the trial Judge, a victim or his legal representative does not have the mandate to prosecute crimes on behalf of the DPP. The DPP must at all times retain control of, and supervision over the prosecution of the case. As such, the constitutional and statutory powers of the DPP to conduct the prosecution is not affected by the intervention of the victim in the process"
46. The respondent submitted thus that the Applicant herein cannot purport to wear the hat of the prosecution and commence revisionary proceedings against the Respondent/Accused. The complainant should not be allowed to swing his weight around and compete with or subvert the powers of the Director of Public Prosecutions.
47. On the jurisdiction of this court to revise the decision of the lower court, the applicant cited the provisions of Article 165(6) and (7) of the Constitution read together with Section 362 of the Criminal Procedure Code to justify this Honourable Court's supervisory jurisdiction upon which the court should proceed to exercise its revisionary powers of Criminal Case Number E179 of 2023.
48. The respondent, however submitted that it is important to note that although the High Court is vested with the constitutional supervisory powers pursuant to provisions of Article 165(6) and (7) of the Constitution read together with Section 362 of the Criminal Procedure Code which includes the power to call for records of any proceedings before any subordinate court as to the correctness and regularity of the proceedings, the High Court is restricted when exercising such powers under Article 165 and when specifically dealing with a revisionary application seeking to reverse or alter an order of acquittal of the trial court.
49. The respondent went further to cite Section 348A of the Criminal Procedure Code specifically which sets out the limits within which any review of an order of acquittal issued by the subordinate can be subject of alteration. Any order of acquittal made by the magistrate court is exclusively for appeal to the High Court and not for revision.
50. The respondent contended that Section 380 of the CPC states; "No finding, sentence or order of a criminal court shall be set aside merely on the ground that the inquiry, trial or other proceeding in the course of which it was arrived at or passed took place in a wrong area, unless it appears that the error has occasioned a failure of justice."
51. In the respondent’s view, where there is a specific statutory procedure to review any order by way of an appeal the same cannot be conducted by way of a revision as provided for in Section 364 (1) of the Criminal Procedure Code.
52. In the Criminal Revision case No. 3 of 2018: MCS vs Republic [2019]eKLR, the court noted and held as follows:-
"[7] Likewise, Section and 364(1)(b) of the Criminal Procedure Code stipulates that:
"In the case of a proceeding in 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... in the case of any other order other than an order of acquittal alter or reverse the order."
[8] To my mind, the provision is explicit enough that, in the case of an acquittal, the review jurisdiction is ousted, no matter the merits. Thus, in Bichange vs. Republic [2005] 2 KLR, the Court of Appeal took the following view regarding the import of
Section 364 that:
"The meaning of this section is plain. Where an accused person has been acquitted, the provisions in respect of revision cannot be used to turn an acquittal into a conviction. The trial magistrate had acquitted the appellant on the main charge of defilement under section 145 of the Penal Code. In view of the provisions of section 364(4) of the Criminal Procedure Code, Tuiyot, J had no power and was not entitled to convert that acquittal into a conviction."
[9] Thus, where the outcome is an acquittal, the only option available is well set out in Section 348A of the Criminal Procedure Code,..."
53. According to the respondents the provisions of Section 362 of the CPC cannot be invoked in the instant application seeking revision as it is not the legally acceptable recourse for the complainant.
54. The only legally entrenched recourse open to the complainant/victim and/or the Office of Director of Public Prosecutions once an acquittal is entered is an Appeal under Section 348A of the Criminal Procedure Code which appeal was not done and thus the court is barred under Section 364(1) (b) of the Criminal Procedure Code from exercising revisionary powers of an order of acquittal issued by the trial court.
55. The respondent maintained that the dispute between them was civil in nature this explains why the prosecution terminated the proceedings in the trial court.
56. The respondent further urged this court to consider that the Counsel watching brief for the Applicant was always present in court and was well aware of all the dates including the date when the matter was withdrawn. The Applicant's Counsel deliberately failed to attend and address court or have their views were channelled through the prosecution.
57. The respondent further submitted that it is understandable that the victim had a right to give his views as required under Section 20 of the Victim Protection Act. However, the victim through his counsel watching brief had a duty to address the court on his concerns or views on the application made by the DPP to withdraw the charges which was not done. There being no secrecy on the date and time when the matter was coming up and when Counsel was expected to address such views, the same cannot be blamed on the Accused, prosecution and/or the court in the disguise of a revision.
58. The absence or refusal of the Counsel watching brief for the Complainant to attend and address court or give his views should not constitute a justified reason to prevent the prosecution to execute its constitutional mandate as provided under Article 157 of the Constitution which failure would have resulted to the prejudice of the Accused's constitutional rights.
59. According to the respondent the application by the DPP to withdraw the matter was made in open court and a ruling delivered thereto. The DPP did not require the permission of the Applicant herein to either prosecute or terminate criminal proceedings against the accused noting that the matter was civil in nature. The decision to allow or disallow an application to withdraw a criminal matter lies squarely with the discretion of ODPP with the consent of the court. This is what exactly happened in Chief Magistrate Criminal Case Number E179 OF 2023.
60. In conclusion the respondent submitted that in light of the foregoing, the trial court properly exercised its discretion in granting the application for the withdrawal of the matter thus this revision application should be dismissed,
INTERESTED PARTY’S CASE( DPP)
61. In response to the application, the DPP who was named as an interested party filed a replying affidavit sworn by Mr. Opundo James Prosecution counsel.
62. Mr Opundo deposed that he is seized of the facts in this matter and duly authorized and instructed to swear this Affidavit on behalf of the ODPP.
63. The deponent averred that it is within his knowledge that on the 13th March, 2024, the Respondent herein was charged with three (3) counts, namely, 1. Stealing by the Director Contrary to section 282 of the Penal Code, 2. Forgery contrary to Section 349 of the Penal Code and 3. Uttering a false document contrary to section 353 of the Penal Code. goods, whereof the Respondent pleaded not guilty, and the matter is yet to proceed for hearing as no witnesses have so far testified.
64. The deponent in support of his affidavit annexed the charge sheet which this court has had occasion to look at.
65. He further deponed that he had carefully read the applicant's Notice of motion dated 7th January 2025, the supporting affidavit and the annexures thereto.
66. In response to the application, counsel deposed that he is aware that charges against the accused person were premised on bank transactions undertaken by Respondent herein as a signatory to the bank account number 0102476524600 held by Lalji Meghji Patel & Company Limited at standard chartered bank Kenya limited, and over funds paid to Lalji Meghji & Company Limited by Narok County Government for the contract; New Narok County Government Referral Hospital.
67. THAT the said charges were also based on a complaint by Pravin Patel Mavji, the co- director and a business partner in Elite Earth Movers Limited, after disagreements in the business relationship between the accused and Pravin Mavji at the time of filing of the complaint.
68. THAT the Respondent herein was arrested, charged, and thereafter pleaded not guilty to the said charges.
69. THAT during the pendency of the criminal proceedings at the trial Magistrates Court, the Respondent thereafter challenged the charges in the High Court Judicial Review in Misc. Civil Application No. E049 OF 2023 stating that the charges brought against him were civil in nature and that the criminal case ought not to have been filed.
70. THAT the said application was served upon the interested party and after careful scrutiny of the same and by virtue of the powers vested in the Office of Director of Public Prosecutions under Article 157 of the Constitution and Section 5(4)(e) of the ODPP Act the DPP confirmed that indeed the nature of the complaint and proceedings against the Respondent herein were a product of a dispute which was civil in nature.
71. The DPP, upon confirming that the dispute was civil in nature, in exercise of his powers to ensure that there is no abuse of the criminal justice process, decided to have charges withdrawn and directed that an application be made to the trial court to withdraw all the charges against the Respondent herein.
72. The Honourable Magistrate Court in MCCR NO. E179 OF 2023 allowed the application, and the matter was withdrawn under Section 87 (a) of the Criminal Procedure Code.
73. The said withdrawal of the charges against the accused is subject of the instant proceedings seeking revision of the Ruling of the trial court for allowing the ODPP’S application for withdrawal of the charges against the Respondent.
74. According to Mr. Omondi the process leading to the withdrawal of the charges was conducted transparently and in accordance with the law.
75. Counsel observed that the Supporting Affidavit to the Application dated 7th January 2025 is sworn by one Pravin Patel Mavji who is also alleged to be the complainant/victim in the matter, yet, the victim is a company known as Lalji Meghji & Company Limited, thus as far as the DPP is concerned, the victim is Lalji Meghji & Company Limited and not Pravin.
76. The interested party contended that there is no iota of evidence in the supporting affidavit sworn by Mr. Pravin to demonstrate, either by way of the said company resolutions that he was appointed to act on behalf of the Company.
77. The interested party further contended that in as far as the case was concerned, the applicant was merely a witness and in the absence of any company resolution appointing him as its director or any individual to act on its behalf, the alleged complainant (Pravin) remains an impostor whose allegations in the said supporting affidavit are personal in nature and lack the locus standi in the instant proceedings specifically where the victim is a company.
78. Counsel for the interested party conceded that he is aware that a victim is entitled to be allowed to be heard pursuant to Section 9(2)(a) of the Victim Protection Act, and that he is cognizant of the fact that victims can be represented by their lawyers to present their views.
79. He further claimed that the Applicant/victim herein, through his then advocate (Counsel Nyamu) on record for the victim, was at all material times present at the trial court during the proceedings and was aware of the DPP's inte
[...truncated]
a). THAT this Honourable Court be pleased to call for the subordinate Court file being Criminal case Number E179 of 2023 for the purpose of revising the Order made on 13th May, 2023 withdrawing the suit.
b). THAT this Honourable Court be pleased to Order that Criminal case Number E179 of 2023 be reinstated for hearing and determination on merit.
2. The application is grounded on the affidavit of PRAVIN MAVJI PATEL and the following grounds set out on the face of the application-;-
a. The Respondent was charged before the Chief Magistrates Court at Milimani with the offence of Stealing by Director Contrary to Section 282 of the Penal Code, particulars that on the diverse dates between 5th August, 2021 and 23rd October, 2021 in Westlands Sub-County within Nairobi City County, being a Director of Elite Earthmovers Limited stole Kshs. 71,500,000/= (Seventy One Million Five Hundred Thousand Shillings) the property of Elite property of Elite Earthmovers Limited which came into his possession by virtue of his directorship to the said Elite Earthmovers Limited.
b. On Count II, the Respondent was charged with the offence of forgery contrary to Section 349 of the Penal Code; particulars that on the 10th September, 2020 at Lalji Meghji Patel and Company Limited Head Office along Mombasa Road within Nairobi City County, with intent to defraud forged Lalji Meghji Patel and Company Limited Board Resolution Purporting to be a sole signatory to account number 0102486724000 and account name Lalji Meghji Patel and Company Limited held at Standard Charted Bank Westlands Branch.
c. On Count III, the Respondent was charged with the offence of uttering a False Document Contrary to Section 353 of the Panel Code, particulars that on 7th October, 2020 at Standard Chartered Bank Westlands Branch in Westlands Sub County within Nairobi City County, knowingly and fraudulently uttered Lalji Meghji Patel and Company Limited Board Resolution purporting to be a sole signatory to account number 0102486724000, account name Lalji Meghji Patel and Company Limited held at Standard Charted Bank Westlands Branch.
3. The Respondent pleaded not guilty and was released on Bond/cash Bail and immediately thereafter, challenged his prosecution in the High Court in the Judicial Review Division in Miscellaneous Civil Application No. E049 of 2023 Republic -vs- the DPP, IG of Police, AG, the Chief Magistrates Court, Milimani Criminal Court Division ex- parte Parminder Singh Mankhu. He obtained leave to seek by way of Certiorari to quash the decision to charge him.
4. The D.P.P being the Interested party herein through Senior Assistant Director Public Prosecutions Christine Nanjala filed Grounds of Opposition to the Respondent's Judicial Review application and defended the decision to charge the Respondent based on the facts, the law and overwhelming evidence against him of forging signatures of deceased directors of Lalji Meghji Patel and Company Limited Board Resolutions and using the same to steal money meant for the project being undertaken by Elite Earthmovers Limited.
5. According to the applicant the evidence against the Respondent is overwhelming as Forensic Examiners Report of the Bank accounts of Standard Chartered Bank confirmed withdrawal or loss of the said sum of Kshs. 71,500,000/= as stated in the charge sheet and also Documents Examiners Report by DCI Experts confirmed that the Company Board Resolutions of Lalji Meghji Patel and Company Limited were forged as their Directors did not sign them as they were out of the country then in London in the United Kingdom for treatment and passed on when the Respondent forged their signatures claiming they were signed in Nairobi just before he presented them at Standard Chartered Bank and withdrew the said sums.
6. The DPP and Interested party herein duly followed the Guidelines on the Decision to Charge 2019, therefore their decision to apply to withdraw the lower Court suit on the pretext that it was Civil in nature does not hold any water as clearly, crimes were committed by the Respondent leading to the loss of money and there is evidence to the effect.
7. Vide a Judgement dated 27th October, 2023, the Respondent application in paragraph 4 above was dismissed by Honourable Justice John Chigiti.
8. According to the applicant thereafter, the Respondent embarked on a spirited extrajudicial means of harassing the Applicant in Order to have the Applicant withdraw his complaint and case in the lower Court or else he would face trumped up charges and true to his word, the Applicant was arrested severally on false claims that he had hired hit men to kill the Respondent.
9. That true to the Respondent's threats, barely one week after recording a statement at the Nairobi Regional Police Headquarters, the lower Court suit was withdrawn unceremoniously when witnesses were ready to take the stand and the Applicant was never in formed or consulted prior thereto.
10. That when the prosecution sought to withdraw the suit, it had received additional evidence from the victim and had sought to add additional Counts against the accused and the victim had been briefed on the same at the DCI Headquarters and consent for the same had been received from the ODPP, the interested party.
11. That Counsel watching brief then, with the leave of the Court, made another application seeking to have the victim be heard pursuant to section 9(2) of the Victim Protection Act 2014 and also for the victim to be allowed to adduce additional evidence.
12. That the Learned Trial Magistrate however in a ruling delivered on 13th May 2024 disallowed the application by the victim and withdrew the suit.
13. That the Learned Trial Magistrate failed to consider that the accused person was at all times during the trial, ably represented by a team of counsel and it not likely to be disadvantaged or prejudiced.
14. That similarly the Learned Trial Magistrate failed to take into account the nature of the case, the distress and repercussions to the victim and the fact that all the prosecution was at all times willing to give advance copies of all the documents and statements to the defence and sufficient time to prepare their defence.
15. That the Learned Trial Magistrate erred in failing to realize the role of the victim's lawyer and in effectively locking out the evidence by the prosecution.
16. That it is the interest of justice that this matter Honourable Court review and set aside the Ruling of the lower Court dated 13th May, 2024 as prayed.
17. The application was further supported by the affidavit of PRAVIN MAVJI PATEL the Managing Director of Elite Earthmovers Limited.
18. The deponent deposed that the Respondent was charged before the Chief Magistrates Court at Milimani with the offence of Stealing by Director Contrary to Section 282 of the Penal Code.
19. The particulars of the offence being that on diverse dates between 5th August, 2021 and 23rd October, 2021 in Westlands Sub-County within Nairobi City County, being a Director of Elite Earthmovers Limited stole Kshs. 71,500,000/= (Seventy One Million Five Hundred Thousand Shillings) the property of Elite Earthmovers Limited which came into his possession by virtue of his directorship to the said Elite Earthmovers Limited. (See annexed charge sheet marked PMP1)
20. In Count II, the Respondent was charged with the offence of forgery contrary to Section 349 of the Penal Code;
21. The particulars were that on the 10th September, 2020 at Lalji Meghji Patel and Company Limited Head Office along Mombasa Road within Nairobi City County, with intent to defraud forged Lalji Meghji Patel and Company Limited Board Resolution Purporting to be a sole signatory to account number 0102486724000 and account name Lalji Meghji Patel and Company Limited held at Standard Charted Bank Westlands Branch.
22. The applicant further deposed that in Count III, the Respondent was charged with the offence of uttering a False Document Contrary to Section 353 of the Panel Code, particulars being that on 7th October, 2020 at Standard Chartered Bank Westlands Branch in Westlands Sub County within Nairobi City County, knowingly and fraudulently uttered Lalji Meghji Patel and Company Limited Board Resolution purporting to be a sole signatory to account number 0102486724000, account name Lalji Meghji Patel and Company Limited held at Standard Charted Bank Westlands Branch.
23. The deponent went on to reiterate the grounds appearing on the face of the application.
24. The deponent further deposed that the Learned Trial Magistrate erred in failing to realize the role of the victim's lawyer and in effectively locked out the evidence by the prosecution.
25. The deponent averred that it is the interests of justice that this Honourable Court reviews and sets aside the Ruling of the lower Court dated 13th May, 2024.
26. The applicant maintained that he had brought this application in his capacity as a victim who is equally protected under the Victims Protection Act Number 7 of 2014 and that he strongly feels that justice has not been done at all. He therefore urged this court to grant the application.
RESPONDENT'S CASE
27. The respondent in this matter contended that the charges in this case were based on a complaint by Pravin Patel Mavji, who was the accused's co-director/shareholder and business partner in Elite Earth Movers Limited, which business relationship soured irredeemably over contractual disagreements at the time of the complaint.
28. After careful review of the case, the Office of the Director of Public Prosecutions on its own volition made an application to withdraw the matter pursuant to Section 87(A) of the Criminal Procedure Code for the reason that the matter in the Chief Magistrate Criminal Case No. E179 OF 2023 was of a civil nature.
29. Consequently, the trial court on 13th May 2024 issued a ruling ordering that the matter was withdrawn under Section 87(A) of the Penal Code and the Accused Person was acquitted.
30. The Victim's advocate in the firm of M/S Magare Musundi & Company Advocates filed a letter dated 22nd May 2024 seeking revision of the Ruling and Order issued on 13th May 2024 by Hon. R. Ondiek in the Chief Magistrate Criminal Case No. E179 OF 2023 pursuant to Section 362 and 364(1) (b) of the Criminal Procedure Code.
31. The Respondent/Accused herein filed a Preliminary Objection dated 20th November 2024 against the said letter seeking revision and thereafter filed his submissions dated 25th November 2024.
32. The Applicant also filed a Notice of Motion Application dated 7th January 2025 seeking revision of the Order made on 13th May 2023 withdrawing the suit in Criminal Case Number E179 OF 2023.
33. The Respondent herein filed a Replying Affidavit dated 26th May 2025 in response to both the letter dated 22nd May 2024 and the Applicant's Application dated 7th January 2025.
34. The respondent opposed this application and urged this court to decline reinstating this matter.
35. The respondent submitted that where there is a clear procedure for redress prescribed by the constitution or statute, that procedure must be strictly followed. According to the respondent the Applicant herein did not follow the required constitutional and statutory procedure. The Applicant has no role to play in commencing criminal proceedings including revisionary proceedings.
36. The respondent argued that it is the constitutional role of the Director of Public Prosecution to commence or terminate criminal proceedings against an Accused Person as provided under Article 157(6) read together with Article 157(10) of the Constitution.
37. Even in Criminal Case Number 179 of 2023, it was not the Applicant who commenced the criminal proceedings to justify him to also commence the instant revisionary proceedings against the Respondent/Accused.
38. The respondent relied on Article 157(6) of the Constitution which 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) 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 (c) subject to clause (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)."
39. Further, Article 157 (10) of the Constitution clearly states "The Director of Public Prosecutions shall not require the consent of any person or authority for the commencement of criminal proceedings and in the exercise of his or her powers or functions, shall not be under the direction or control of any person or authority"
40. It is the respondent’s submission that the office charged with commencing or terminating criminal proceedings against the Accused Person is squarely the Office of the Director of Public Prosecutions and not the victim or his advocate.
41. The respondent relied on the Criminal Appeal No. 295 of 2005: Kamau John Kinyanjui v Republic [2010] eKLR, wherein the court observed and held;
“Who is the "complainant in a criminal trial? Is he the victim of the crime?
We start from first principles and on that basis we cannot help but observe that all criminal prosecutions in Kenya, whether they be instituted by a private person or by the Attorney-General, are always headed:-
"REPUBLIC, i.e. the REPUBLIC OF KENYA Versus THE ACCUSED PERSON." It is the Republic which undertakes the prosecution for a crime on behalf of the victim of the crime and in doing so, the Republic is acting on behalf of all Kenyans. It is in the interest of all Kenyans that crime be punished and if the issue of punishing crimes was to be left to the victims of such crimes, there will be the question of whether the victims would be in a position to pay for the prosecution of the perpetrators of such crimes. To avoid such questions arising the Republic normally does the prosecution on behalf of the people and hence the title "REPUBLIC Vs. THE ACCUSED PERSON" and not THE VICTIM OF THE CRIME VS. THE ACCUSED PERSON".
42. According to the respondent when complainants/victims present their views and concerns in accordance with Section 9(2) (a) of the Victim Protection Act No. 9 of 2014, the victims are only limited to assisting the trial court to obtain a clear picture of what happened and how they suffered but not granting them prosecutorial powers of commencing or terminating criminal proceedings which powers are only donated to the Office Director of Public Prosecution by the Constitution.
43. Complainants do not have an active role in the decision to either prosecute or terminate the charges against an accused person.
44. In the case of Chigiti & another v Republic (Criminal Revision E011 of 2020) [2022] KEHC 10427 (KLR) (21 June 2022 ) (Judgment) the court observed;
"In addition, I think the complainant is on rather precarious ground in making representation as it did and arguing this matter as if they were co-prosecutors in the criminal case. The role of a complainant who is a victim was well explained by the Supreme Court when it ruled in Joseph Lendrix Waswa v Republic [2020] eKLR that victims have no active role in the prosecution of the case. The victim cannot and does not wear the hat of a secondary prosecutor. "We are of the view that the victim has no active role in the decision to prosecute, or the determination of the charge upon which the accused will finally be tried. This is the sole duty of the DPP. While the victim of a crime can participate at any stage of the proceedings as deemed appropriate by the trial Judge, a victim or his legal representative does not have the mandate to prosecute crimes on behalf of the DPP. The DPP must at all times retain control of, and supervision over the prosecution of the case. As such, the constitutional and statutory powers of the DPP to conduct the prosecution is not affected by the intervention of the victim in the process. Additionally, a victim cannot and does not wear the hat of a secondary prosecutor. When victims present their views and concerns in accord with section 9(2) (a) of the VPA, victims are assisting the trial Judge to obtain a clear picture of what happened (to them) and how they suffered, which the Judge may decide to take into account."
45. The respondent further cited the case of Ruto v Republic; Odhiambo & another (Interested Parties); Otieno (Intended Interested Party) (Miscellaneous Criminal Revision E075 of 2023) [2024] KEHC 316 (KLR) (24 January 2024) (Ruling) the court cited the supreme court case of Joseph Lintrex Waswa Case wherein the court stated:-
"We agree with this view and adopt it as the correct position in law. We are of the view that the victim has no active role in the decision to prosecute, or the determination of the charge upon which the accused will finally be tried. This is the sole duty of the DPP. While the victim of a crime can participate at any stage of the proceedings as deemed appropriate by the trial Judge, a victim or his legal representative does not have the mandate to prosecute crimes on behalf of the DPP. The DPP must at all times retain control of, and supervision over the prosecution of the case. As such, the constitutional and statutory powers of the DPP to conduct the prosecution is not affected by the intervention of the victim in the process"
46. The respondent submitted thus that the Applicant herein cannot purport to wear the hat of the prosecution and commence revisionary proceedings against the Respondent/Accused. The complainant should not be allowed to swing his weight around and compete with or subvert the powers of the Director of Public Prosecutions.
47. On the jurisdiction of this court to revise the decision of the lower court, the applicant cited the provisions of Article 165(6) and (7) of the Constitution read together with Section 362 of the Criminal Procedure Code to justify this Honourable Court's supervisory jurisdiction upon which the court should proceed to exercise its revisionary powers of Criminal Case Number E179 of 2023.
48. The respondent, however submitted that it is important to note that although the High Court is vested with the constitutional supervisory powers pursuant to provisions of Article 165(6) and (7) of the Constitution read together with Section 362 of the Criminal Procedure Code which includes the power to call for records of any proceedings before any subordinate court as to the correctness and regularity of the proceedings, the High Court is restricted when exercising such powers under Article 165 and when specifically dealing with a revisionary application seeking to reverse or alter an order of acquittal of the trial court.
49. The respondent went further to cite Section 348A of the Criminal Procedure Code specifically which sets out the limits within which any review of an order of acquittal issued by the subordinate can be subject of alteration. Any order of acquittal made by the magistrate court is exclusively for appeal to the High Court and not for revision.
50. The respondent contended that Section 380 of the CPC states; "No finding, sentence or order of a criminal court shall be set aside merely on the ground that the inquiry, trial or other proceeding in the course of which it was arrived at or passed took place in a wrong area, unless it appears that the error has occasioned a failure of justice."
51. In the respondent’s view, where there is a specific statutory procedure to review any order by way of an appeal the same cannot be conducted by way of a revision as provided for in Section 364 (1) of the Criminal Procedure Code.
52. In the Criminal Revision case No. 3 of 2018: MCS vs Republic [2019]eKLR, the court noted and held as follows:-
"[7] Likewise, Section and 364(1)(b) of the Criminal Procedure Code stipulates that:
"In the case of a proceeding in 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... in the case of any other order other than an order of acquittal alter or reverse the order."
[8] To my mind, the provision is explicit enough that, in the case of an acquittal, the review jurisdiction is ousted, no matter the merits. Thus, in Bichange vs. Republic [2005] 2 KLR, the Court of Appeal took the following view regarding the import of
Section 364 that:
"The meaning of this section is plain. Where an accused person has been acquitted, the provisions in respect of revision cannot be used to turn an acquittal into a conviction. The trial magistrate had acquitted the appellant on the main charge of defilement under section 145 of the Penal Code. In view of the provisions of section 364(4) of the Criminal Procedure Code, Tuiyot, J had no power and was not entitled to convert that acquittal into a conviction."
[9] Thus, where the outcome is an acquittal, the only option available is well set out in Section 348A of the Criminal Procedure Code,..."
53. According to the respondents the provisions of Section 362 of the CPC cannot be invoked in the instant application seeking revision as it is not the legally acceptable recourse for the complainant.
54. The only legally entrenched recourse open to the complainant/victim and/or the Office of Director of Public Prosecutions once an acquittal is entered is an Appeal under Section 348A of the Criminal Procedure Code which appeal was not done and thus the court is barred under Section 364(1) (b) of the Criminal Procedure Code from exercising revisionary powers of an order of acquittal issued by the trial court.
55. The respondent maintained that the dispute between them was civil in nature this explains why the prosecution terminated the proceedings in the trial court.
56. The respondent further urged this court to consider that the Counsel watching brief for the Applicant was always present in court and was well aware of all the dates including the date when the matter was withdrawn. The Applicant's Counsel deliberately failed to attend and address court or have their views were channelled through the prosecution.
57. The respondent further submitted that it is understandable that the victim had a right to give his views as required under Section 20 of the Victim Protection Act. However, the victim through his counsel watching brief had a duty to address the court on his concerns or views on the application made by the DPP to withdraw the charges which was not done. There being no secrecy on the date and time when the matter was coming up and when Counsel was expected to address such views, the same cannot be blamed on the Accused, prosecution and/or the court in the disguise of a revision.
58. The absence or refusal of the Counsel watching brief for the Complainant to attend and address court or give his views should not constitute a justified reason to prevent the prosecution to execute its constitutional mandate as provided under Article 157 of the Constitution which failure would have resulted to the prejudice of the Accused's constitutional rights.
59. According to the respondent the application by the DPP to withdraw the matter was made in open court and a ruling delivered thereto. The DPP did not require the permission of the Applicant herein to either prosecute or terminate criminal proceedings against the accused noting that the matter was civil in nature. The decision to allow or disallow an application to withdraw a criminal matter lies squarely with the discretion of ODPP with the consent of the court. This is what exactly happened in Chief Magistrate Criminal Case Number E179 OF 2023.
60. In conclusion the respondent submitted that in light of the foregoing, the trial court properly exercised its discretion in granting the application for the withdrawal of the matter thus this revision application should be dismissed,
INTERESTED PARTY’S CASE( DPP)
61. In response to the application, the DPP who was named as an interested party filed a replying affidavit sworn by Mr. Opundo James Prosecution counsel.
62. Mr Opundo deposed that he is seized of the facts in this matter and duly authorized and instructed to swear this Affidavit on behalf of the ODPP.
63. The deponent averred that it is within his knowledge that on the 13th March, 2024, the Respondent herein was charged with three (3) counts, namely, 1. Stealing by the Director Contrary to section 282 of the Penal Code, 2. Forgery contrary to Section 349 of the Penal Code and 3. Uttering a false document contrary to section 353 of the Penal Code. goods, whereof the Respondent pleaded not guilty, and the matter is yet to proceed for hearing as no witnesses have so far testified.
64. The deponent in support of his affidavit annexed the charge sheet which this court has had occasion to look at.
65. He further deponed that he had carefully read the applicant's Notice of motion dated 7th January 2025, the supporting affidavit and the annexures thereto.
66. In response to the application, counsel deposed that he is aware that charges against the accused person were premised on bank transactions undertaken by Respondent herein as a signatory to the bank account number 0102476524600 held by Lalji Meghji Patel & Company Limited at standard chartered bank Kenya limited, and over funds paid to Lalji Meghji & Company Limited by Narok County Government for the contract; New Narok County Government Referral Hospital.
67. THAT the said charges were also based on a complaint by Pravin Patel Mavji, the co- director and a business partner in Elite Earth Movers Limited, after disagreements in the business relationship between the accused and Pravin Mavji at the time of filing of the complaint.
68. THAT the Respondent herein was arrested, charged, and thereafter pleaded not guilty to the said charges.
69. THAT during the pendency of the criminal proceedings at the trial Magistrates Court, the Respondent thereafter challenged the charges in the High Court Judicial Review in Misc. Civil Application No. E049 OF 2023 stating that the charges brought against him were civil in nature and that the criminal case ought not to have been filed.
70. THAT the said application was served upon the interested party and after careful scrutiny of the same and by virtue of the powers vested in the Office of Director of Public Prosecutions under Article 157 of the Constitution and Section 5(4)(e) of the ODPP Act the DPP confirmed that indeed the nature of the complaint and proceedings against the Respondent herein were a product of a dispute which was civil in nature.
71. The DPP, upon confirming that the dispute was civil in nature, in exercise of his powers to ensure that there is no abuse of the criminal justice process, decided to have charges withdrawn and directed that an application be made to the trial court to withdraw all the charges against the Respondent herein.
72. The Honourable Magistrate Court in MCCR NO. E179 OF 2023 allowed the application, and the matter was withdrawn under Section 87 (a) of the Criminal Procedure Code.
73. The said withdrawal of the charges against the accused is subject of the instant proceedings seeking revision of the Ruling of the trial court for allowing the ODPP’S application for withdrawal of the charges against the Respondent.
74. According to Mr. Omondi the process leading to the withdrawal of the charges was conducted transparently and in accordance with the law.
75. Counsel observed that the Supporting Affidavit to the Application dated 7th January 2025 is sworn by one Pravin Patel Mavji who is also alleged to be the complainant/victim in the matter, yet, the victim is a company known as Lalji Meghji & Company Limited, thus as far as the DPP is concerned, the victim is Lalji Meghji & Company Limited and not Pravin.
76. The interested party contended that there is no iota of evidence in the supporting affidavit sworn by Mr. Pravin to demonstrate, either by way of the said company resolutions that he was appointed to act on behalf of the Company.
77. The interested party further contended that in as far as the case was concerned, the applicant was merely a witness and in the absence of any company resolution appointing him as its director or any individual to act on its behalf, the alleged complainant (Pravin) remains an impostor whose allegations in the said supporting affidavit are personal in nature and lack the locus standi in the instant proceedings specifically where the victim is a company.
78. Counsel for the interested party conceded that he is aware that a victim is entitled to be allowed to be heard pursuant to Section 9(2)(a) of the Victim Protection Act, and that he is cognizant of the fact that victims can be represented by their lawyers to present their views.
79. He further claimed that the Applicant/victim herein, through his then advocate (Counsel Nyamu) on record for the victim, was at all material times present at the trial court during the proceedings and was aware of the DPP's inte
[...truncated]