REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KIAMBU
CRIMINAL CASE NO. E019 OF 2024
BETWEEN
REPUBLIC..................................................................................APPLICANT
VERSUS
CI PETER MUTHEE GACHIKU..........................1 st ACCUSED/RESPONDENT
IP JAMES KIBOSEK TANKI...............................2 nd ACCUSED/RESPONDENT
CPL JAMES KAMAU MBUGUA........................3 rd ACCUSED/RESPONDENT
CPL DAVID CHEPCHIENG KIPSOI....................4 th ACCUSED/RESPONDENT
CPL JOSEPH MWENDA MBAYA......................5 th ACCUSED/RESPONDENT
CPL/DRV JOHN MWANGI KAMAU...............6 th ACCUSED/RESPONDENT
CPL HILLARY LIMO KIPCHUMBA...................7 th ACCUSED/RESPONDENT
PC STEPHEN LUSENO MATUNDA...................8 th ACCUSED/RESPONDENT
PC SIMON MUHUGA GIKONYO....................9 th ACCUSED/RESPONDENT
PC PAUL NJOGU MURIITHI.........................10 th ACCUSED/RESPONDENT
PC/DRV BONFACE OTIENO MUTULLA.....…11 th ACCUSED/RESPONDENT
PC ELIKANA NJERU MUGENDI....................12 th ACCUSED/RESPONDENT
PC FREDRICK THUKU KAMAU..................13 th ACCUSED/RESPONDENT
JOHN WANJIKU MACHARIA...................14 th ACCUSED/RESPONDENT
WARDEN MICHAEL KIPLANGAT BETT….15th ACCUSED/RESPONDENT
RULING
A. INTRODUCTION
1. The accused persons herein were charged with the offence of murder contrary to Section 203 as read with Section 204 of the Penal Code, arising from the alleged abduction and disappearance of Mohamed Zaid Sami Kidwai, Zulfiqar Ahmed Khan , and their driver Nicodemus Mwania Mwange on the night of 22nd and 23rd July 2022 along Southern Bypass interchange near Ole Sereni, Nairobi. The Republic, alleged that the victims were killed and their bodies disposed of, though to date the remains of the said victims have not been recovered.
2. Following their arrest between October 2022 and June 2023 , the accused persons were arraigned before this court and eventually took plea in February 2025 , denying the said charges. Bond terms were subsequently set, but no substantive hearing has taken place, apart from hearing of interlocutory applications and a Constitutional Petition No E026 of 2024 challenging the charges preferred against the accused persons. It is to be noted that the outcome of the said Petition was still being litigated at the Court of Appeal.
3. Upon review of the progress made in progressing this matter, on 19th June 2026 , the Director of Public Prosecutions, acting pursuant to his powers donated under Article 157(6) of the Constitution and Sections 82 and 83 of the Criminal Procedure Code , did enter a Nolle Prosequi indicating that the Republic did not intend to proceed with the murder charges preferred against the Respondents and urged the court to adopt the said Nolle Prosequi and to have this matter terminated.
4. The Respondents opposed adoption of the said Nolle Prosequi as an order of the court, and direction were given that the parties do file their submissions in support or in opposition to the same. This Court has had the benefit of considering submissions filed from the Office of the Director of Public Prosecutions, the families of the victim, and the 1st Accused person. Each party has addressed the propriety, legality, and implications of the discontinuance, particularly as regards the rights of the accused, the victims, and public interest in the administration of justice.
B. SUBMISSIONS
(i) Submissions by the Director of Public Prosecution.
5. The Republic relied on their submissions dated 2 nd July 2026, where they argue that the decision by the DPP to enter a Nolle Prosequi in this murder case was lawful, made in good faith, and consistent with public interest. They emphasize that despite the serious allegations of abduction and murder, no substantive evidence has been presented in over two years, and the constitutional petition challenging the charges was still pending determination before the Court of Appeal. Relying on Article 157 of the Constitution and Section 82 of the Criminal Procedure Code, the DPP asserts his discretion to discontinue proceedings, noting that the court could only intervene where the decision had been made in bad faith or abuse of power is shown.
6. Reliance was placed in the authority of Republic v Kamotho & Another (2022) and Seenoi Ene Parsimei v AG (2013) to reinforce the point that prosecutorial independence must be respected unless clear abuse is demonstrated. They concluded their submissions by emphasizing that there is no evidence of capriciousness or oppression, and urged the court to sanction the Nolle Prosequi.
(ii) 1 st Accused Submissions
7. The 1st Accused relied on his submissions dated 30 th June 2026 , to support the DPP’s intention to enter a Nolle Prosequi but emphasize the need for clarity on the exact legal provision under which the withdrawal is sought. He argue that while the DPP has constitutional authority under Article 157(6)(c) of the Constitution and statutory power under Section 82 Criminal Procedure Code to enter the Nolle prosequi, the court should require the prosecution to specify whether the withdrawal is being made under Section 82 (nolle prosequi), Section 87 (withdrawal before subordinate courts), or Section 210 (acquittal for no case to answer), since each carries different legal consequences (discharge vs. acquittal).
8. He stressed that this precision was necessary to safeguard the rights of the accused and ensure clarity of the court’s order. In conclusion, the 1 st Accused reiterated that he did not oppose withdrawal of the case but prayed that the prosecution be directed to specify the exact section relied upon, with costs being borne by the applicant.
(III) Complainant’s (Victim Family) Submissions
9. The complainants filed their submissions dated 26 th June 2026 , supporting the DPP’s notice of intention to enter a Nolle Prosequi but emphasize that the court must exercise supervisory discretion to ensure justice is seen to be done. They advanced the argument that while the DPP had constitutional and statutory power under Article 157 of the Constitution and Section 82 CPC to discontinue proceedings, such discontinuance at this early-stage results only in a discharge, not an acquittal, thus preserving the victims’ right to justice should fresh evidence emerge.
10. They emphasized that no evidence had been presented in the murder trial, and the case was being terminated at its preliminary stage, and therefore the discharge did not extinguish the victims’ rights. Relying on authorities such as Republic v Kamotho & Another (2022) and the Supreme Court’s decision in Joseph Lendrix Waswa v Republic (2020) , they stress that victims are rightsholders entitled to participate and be heard. The complainants ultimately urged the court to allow the Nolle Prosequi but frame its order clearly to reflect that the accused are discharged, not acquitted, so that the door to justice remains open.
C. ANALYSIS AND DETERMINATION
11. I have carefully considered the notice of Nolle Prosequi entered by the Director of Public Prosecutions on 19th June 2026, the submissions filed by the parties hereto and find that the only issue for determination is whether the entry of the Nolle Prosequi was lawful, made in good faith, consistent with the interests of justice, and whether this Court should sanction it.
12. The law governing discontinuance of criminal proceedings is found in Article 157(6)(c) & (e) of the Constitution and Section 82(1) of the Criminal Procedure Code , which empower the DPP to discontinue criminal proceedings at any stage before judgment, subject to the permission of the Court under Article 157(8). Article 157(11) further obliges the DPP to exercise this power in the public interest, in the interests of the administration of justice, and to prevent abuse of the legal process.
13. It is important to underscore that the Office of the Director of Public Prosecutions is an independent constitutional office, mandated to make prosecutorial decisions without direction or control from any person or authority, save for the requirement to act in accordance with the law and the Constitution. Courts have consistently held that judicial interference with the DPP’s discretion is only warranted where there is clear evidence of bad faith, abuse of power, or improper purpose.
14. The DPP submits that despite the gravity of the allegations, no substantive evidence has been presented in over two years since the charges were filed, and the related constitutional petition is still pending at the Court of Appeal. Relying on authorities/precedent set in Republic v Kamotho & Another (2022) and Harrison Auko v Republic (2005) , the DPP argued that prosecutorial discretion can only be interfered with where bad faith or abuse of power is demonstrated, which is not the case here.
15. The Complainant, while supporting the entry of the Nolle Prosequi, emphasizes that justice must not only be done but must be seen to be done. They submit that the order of this Court must clearly reflect that the accused persons are discharged, not acquitted, so that the victims’ rights remain preserved and the possibility of fresh charges upon emergence of new evidence is not foreclosed. They rely on Joseph Lendrix Waswa v Republic (2020) to underscore the constitutional right of victims to participate in proceedings and to be heard before decisions affecting them are made.
16. The 1st Accused, through his counsel, does not oppose the withdrawal but urges the Court to require the prosecution to specify the exact statutory provision under which the withdrawal is sought, whether under Section 82 (nolle prosequi), Section 87 (withdrawal before subordinate courts), or Section 210 (acquittal for no case to answer), since each carries different legal consequences. This, they argue, is necessary to safeguard the rights of the accused and ensure clarity of the Court’s order.
17. Guided by the above submissions and authorities, the applicable test is whether the DPP has acted in good faith, in the public interest, and within the bounds of the law. In Seenoi Ene Parsimei v Attorney General (2013) , Justice G.V Odunga ( As he was then) held as follows; -
Under what circumstances can the Court allow a nolle prosequi? In my view the decision whether or not to enter a nolle prosequi is an exercise of discretion and ought to be exercised bona fide based on reasons. Where Parliament clearly vests the exercise of discretion on a person or authority it would be wrong in the Court’s view to intervene in the merits of the decision. The Court can only intervene in the following situations: (1) where there is an abuse of discretion; (2) where the decision-maker exercises discretion for an improper purpose; (3) where the decision-maker is in breach of the duty to act fairly; (4) where the decision-maker has failed to exercise statutory discretion reasonably; (5) where the decision-maker acts in a manner to frustrate the purpose of the Act donating the power; (6) where the decision-maker fetters the discretion given; (7) where the decision-maker fails to exercise discretion; (8) where the decision-maker is irrational and unreasonable. See the decision of Nyamu, J (as he then was) in Republic vs. Minister for Home Affairs and Others ex Parte Sitamze Nairobi HCCC No. 1652 of 2004 (HCK) [2008] 2 EA 323.
18. Taking all relevant factors into consideration, and noting that the Office of the Director of Public Prosecutions is an independent constitutional office vested with discretion under Article 157(6)(c) of the Constitution and Section 82 of the Criminal Procedure Code to discontinue criminal proceedings, I do find that the entry of the Nolle Prosequi herein was made within mandate, in good faith, and consistent with the public interest. In order to ensure clarity of the legal effect of this discontinuance, and to balance the independence of the DPP, the rights of the accused, the rights of the victims, and the wider interests of justice, I do make the following orders:
a) That the Nolle Prosequi entered by the Director of Public Prosecution herein on 19 th June 2026 is hereby allowed and all the accused persons stand discharged pursuant to Section 82(1) of the Criminal Procedure Code.
b) For avoidance of doubt, such discharge shall not amount to an acquittal, and shall not operate as a bar to subsequent proceedings against the accused persons should fresh evidence emerge or circumstances change.
c) The Bond/Cash Bail deposited by all the Accused persons shall be released.
20. This file is marked as closed.
21. It is so ordered.
Ruling written, dated and signed at KIAMBU this.... 18th .....day of ... AUGUST. .........2026.
FRANCIS RAYOLA OLEL
JUDGE
Ruling delivered on the virtual platform, Teams this 18th day of AUGUST , 2026.
In the presence of;
……………N/A…………………….for ODPP
………………N/A………………….for 1 st to 15 th Respondents
……………N/A…………………….for Victim
……………JULIE…………………….Court Assistant
KIAMBU HCCR NO E019 OF 20242
IN THE HIGH COURT OF KENYA AT KIAMBU
CRIMINAL CASE NO. E019 OF 2024
BETWEEN
REPUBLIC..................................................................................APPLICANT
VERSUS
CI PETER MUTHEE GACHIKU..........................1 st ACCUSED/RESPONDENT
IP JAMES KIBOSEK TANKI...............................2 nd ACCUSED/RESPONDENT
CPL JAMES KAMAU MBUGUA........................3 rd ACCUSED/RESPONDENT
CPL DAVID CHEPCHIENG KIPSOI....................4 th ACCUSED/RESPONDENT
CPL JOSEPH MWENDA MBAYA......................5 th ACCUSED/RESPONDENT
CPL/DRV JOHN MWANGI KAMAU...............6 th ACCUSED/RESPONDENT
CPL HILLARY LIMO KIPCHUMBA...................7 th ACCUSED/RESPONDENT
PC STEPHEN LUSENO MATUNDA...................8 th ACCUSED/RESPONDENT
PC SIMON MUHUGA GIKONYO....................9 th ACCUSED/RESPONDENT
PC PAUL NJOGU MURIITHI.........................10 th ACCUSED/RESPONDENT
PC/DRV BONFACE OTIENO MUTULLA.....…11 th ACCUSED/RESPONDENT
PC ELIKANA NJERU MUGENDI....................12 th ACCUSED/RESPONDENT
PC FREDRICK THUKU KAMAU..................13 th ACCUSED/RESPONDENT
JOHN WANJIKU MACHARIA...................14 th ACCUSED/RESPONDENT
WARDEN MICHAEL KIPLANGAT BETT….15th ACCUSED/RESPONDENT
RULING
A. INTRODUCTION
1. The accused persons herein were charged with the offence of murder contrary to Section 203 as read with Section 204 of the Penal Code, arising from the alleged abduction and disappearance of Mohamed Zaid Sami Kidwai, Zulfiqar Ahmed Khan , and their driver Nicodemus Mwania Mwange on the night of 22nd and 23rd July 2022 along Southern Bypass interchange near Ole Sereni, Nairobi. The Republic, alleged that the victims were killed and their bodies disposed of, though to date the remains of the said victims have not been recovered.
2. Following their arrest between October 2022 and June 2023 , the accused persons were arraigned before this court and eventually took plea in February 2025 , denying the said charges. Bond terms were subsequently set, but no substantive hearing has taken place, apart from hearing of interlocutory applications and a Constitutional Petition No E026 of 2024 challenging the charges preferred against the accused persons. It is to be noted that the outcome of the said Petition was still being litigated at the Court of Appeal.
3. Upon review of the progress made in progressing this matter, on 19th June 2026 , the Director of Public Prosecutions, acting pursuant to his powers donated under Article 157(6) of the Constitution and Sections 82 and 83 of the Criminal Procedure Code , did enter a Nolle Prosequi indicating that the Republic did not intend to proceed with the murder charges preferred against the Respondents and urged the court to adopt the said Nolle Prosequi and to have this matter terminated.
4. The Respondents opposed adoption of the said Nolle Prosequi as an order of the court, and direction were given that the parties do file their submissions in support or in opposition to the same. This Court has had the benefit of considering submissions filed from the Office of the Director of Public Prosecutions, the families of the victim, and the 1st Accused person. Each party has addressed the propriety, legality, and implications of the discontinuance, particularly as regards the rights of the accused, the victims, and public interest in the administration of justice.
B. SUBMISSIONS
(i) Submissions by the Director of Public Prosecution.
5. The Republic relied on their submissions dated 2 nd July 2026, where they argue that the decision by the DPP to enter a Nolle Prosequi in this murder case was lawful, made in good faith, and consistent with public interest. They emphasize that despite the serious allegations of abduction and murder, no substantive evidence has been presented in over two years, and the constitutional petition challenging the charges was still pending determination before the Court of Appeal. Relying on Article 157 of the Constitution and Section 82 of the Criminal Procedure Code, the DPP asserts his discretion to discontinue proceedings, noting that the court could only intervene where the decision had been made in bad faith or abuse of power is shown.
6. Reliance was placed in the authority of Republic v Kamotho & Another (2022) and Seenoi Ene Parsimei v AG (2013) to reinforce the point that prosecutorial independence must be respected unless clear abuse is demonstrated. They concluded their submissions by emphasizing that there is no evidence of capriciousness or oppression, and urged the court to sanction the Nolle Prosequi.
(ii) 1 st Accused Submissions
7. The 1st Accused relied on his submissions dated 30 th June 2026 , to support the DPP’s intention to enter a Nolle Prosequi but emphasize the need for clarity on the exact legal provision under which the withdrawal is sought. He argue that while the DPP has constitutional authority under Article 157(6)(c) of the Constitution and statutory power under Section 82 Criminal Procedure Code to enter the Nolle prosequi, the court should require the prosecution to specify whether the withdrawal is being made under Section 82 (nolle prosequi), Section 87 (withdrawal before subordinate courts), or Section 210 (acquittal for no case to answer), since each carries different legal consequences (discharge vs. acquittal).
8. He stressed that this precision was necessary to safeguard the rights of the accused and ensure clarity of the court’s order. In conclusion, the 1 st Accused reiterated that he did not oppose withdrawal of the case but prayed that the prosecution be directed to specify the exact section relied upon, with costs being borne by the applicant.
(III) Complainant’s (Victim Family) Submissions
9. The complainants filed their submissions dated 26 th June 2026 , supporting the DPP’s notice of intention to enter a Nolle Prosequi but emphasize that the court must exercise supervisory discretion to ensure justice is seen to be done. They advanced the argument that while the DPP had constitutional and statutory power under Article 157 of the Constitution and Section 82 CPC to discontinue proceedings, such discontinuance at this early-stage results only in a discharge, not an acquittal, thus preserving the victims’ right to justice should fresh evidence emerge.
10. They emphasized that no evidence had been presented in the murder trial, and the case was being terminated at its preliminary stage, and therefore the discharge did not extinguish the victims’ rights. Relying on authorities such as Republic v Kamotho & Another (2022) and the Supreme Court’s decision in Joseph Lendrix Waswa v Republic (2020) , they stress that victims are rightsholders entitled to participate and be heard. The complainants ultimately urged the court to allow the Nolle Prosequi but frame its order clearly to reflect that the accused are discharged, not acquitted, so that the door to justice remains open.
C. ANALYSIS AND DETERMINATION
11. I have carefully considered the notice of Nolle Prosequi entered by the Director of Public Prosecutions on 19th June 2026, the submissions filed by the parties hereto and find that the only issue for determination is whether the entry of the Nolle Prosequi was lawful, made in good faith, consistent with the interests of justice, and whether this Court should sanction it.
12. The law governing discontinuance of criminal proceedings is found in Article 157(6)(c) & (e) of the Constitution and Section 82(1) of the Criminal Procedure Code , which empower the DPP to discontinue criminal proceedings at any stage before judgment, subject to the permission of the Court under Article 157(8). Article 157(11) further obliges the DPP to exercise this power in the public interest, in the interests of the administration of justice, and to prevent abuse of the legal process.
13. It is important to underscore that the Office of the Director of Public Prosecutions is an independent constitutional office, mandated to make prosecutorial decisions without direction or control from any person or authority, save for the requirement to act in accordance with the law and the Constitution. Courts have consistently held that judicial interference with the DPP’s discretion is only warranted where there is clear evidence of bad faith, abuse of power, or improper purpose.
14. The DPP submits that despite the gravity of the allegations, no substantive evidence has been presented in over two years since the charges were filed, and the related constitutional petition is still pending at the Court of Appeal. Relying on authorities/precedent set in Republic v Kamotho & Another (2022) and Harrison Auko v Republic (2005) , the DPP argued that prosecutorial discretion can only be interfered with where bad faith or abuse of power is demonstrated, which is not the case here.
15. The Complainant, while supporting the entry of the Nolle Prosequi, emphasizes that justice must not only be done but must be seen to be done. They submit that the order of this Court must clearly reflect that the accused persons are discharged, not acquitted, so that the victims’ rights remain preserved and the possibility of fresh charges upon emergence of new evidence is not foreclosed. They rely on Joseph Lendrix Waswa v Republic (2020) to underscore the constitutional right of victims to participate in proceedings and to be heard before decisions affecting them are made.
16. The 1st Accused, through his counsel, does not oppose the withdrawal but urges the Court to require the prosecution to specify the exact statutory provision under which the withdrawal is sought, whether under Section 82 (nolle prosequi), Section 87 (withdrawal before subordinate courts), or Section 210 (acquittal for no case to answer), since each carries different legal consequences. This, they argue, is necessary to safeguard the rights of the accused and ensure clarity of the Court’s order.
17. Guided by the above submissions and authorities, the applicable test is whether the DPP has acted in good faith, in the public interest, and within the bounds of the law. In Seenoi Ene Parsimei v Attorney General (2013) , Justice G.V Odunga ( As he was then) held as follows; -
Under what circumstances can the Court allow a nolle prosequi? In my view the decision whether or not to enter a nolle prosequi is an exercise of discretion and ought to be exercised bona fide based on reasons. Where Parliament clearly vests the exercise of discretion on a person or authority it would be wrong in the Court’s view to intervene in the merits of the decision. The Court can only intervene in the following situations: (1) where there is an abuse of discretion; (2) where the decision-maker exercises discretion for an improper purpose; (3) where the decision-maker is in breach of the duty to act fairly; (4) where the decision-maker has failed to exercise statutory discretion reasonably; (5) where the decision-maker acts in a manner to frustrate the purpose of the Act donating the power; (6) where the decision-maker fetters the discretion given; (7) where the decision-maker fails to exercise discretion; (8) where the decision-maker is irrational and unreasonable. See the decision of Nyamu, J (as he then was) in Republic vs. Minister for Home Affairs and Others ex Parte Sitamze Nairobi HCCC No. 1652 of 2004 (HCK) [2008] 2 EA 323.
18. Taking all relevant factors into consideration, and noting that the Office of the Director of Public Prosecutions is an independent constitutional office vested with discretion under Article 157(6)(c) of the Constitution and Section 82 of the Criminal Procedure Code to discontinue criminal proceedings, I do find that the entry of the Nolle Prosequi herein was made within mandate, in good faith, and consistent with the public interest. In order to ensure clarity of the legal effect of this discontinuance, and to balance the independence of the DPP, the rights of the accused, the rights of the victims, and the wider interests of justice, I do make the following orders:
a) That the Nolle Prosequi entered by the Director of Public Prosecution herein on 19 th June 2026 is hereby allowed and all the accused persons stand discharged pursuant to Section 82(1) of the Criminal Procedure Code.
b) For avoidance of doubt, such discharge shall not amount to an acquittal, and shall not operate as a bar to subsequent proceedings against the accused persons should fresh evidence emerge or circumstances change.
c) The Bond/Cash Bail deposited by all the Accused persons shall be released.
20. This file is marked as closed.
21. It is so ordered.
Ruling written, dated and signed at KIAMBU this.... 18th .....day of ... AUGUST. .........2026.
FRANCIS RAYOLA OLEL
JUDGE
Ruling delivered on the virtual platform, Teams this 18th day of AUGUST , 2026.
In the presence of;
……………N/A…………………….for ODPP
………………N/A………………….for 1 st to 15 th Respondents
……………N/A…………………….for Victim
……………JULIE…………………….Court Assistant
KIAMBU HCCR NO E019 OF 20242