1. The State through the DPP is the appellant in this case by way of Petition of Appeal dated 3/1/2024.
2. After the record of appeal was filed, the State asked for and was granted time on several occasions to file submissions but it never did. Learned prosecution counsel/for the appellant kept asking for more time. Finally, on 30/9/2024, learned counsel for the appellant prayed for withdrawal of the criminal appeal.
3. Learned counsel for the appellant informed the court that she had consulted with her colleagues and they did not wish to proceed with the appeal. The court reserved the ruling for 2/10/2024.
4. When the case came up for delivery of the ruling on this date, Mr. Mutisya, learned counsel appeared and stated that he was for the complainant. He was allowed to address the court upon which he submitted that the complainant wished to be heard on the application by the State to withdraw the appeal. The court asked the appellant and the respondents as well as the complainant through his learned counsel to file submissions on the matter for its determination.
5. Mr. Mutisya learned counsel for the complainant submits that the appeal raises weighty grounds. He submits further that the victim will be deprived of his rights under the Victim Protection Act (Cap. 79A) Laws of Kenya and will be condemned unheard, will loss restorative justice and will be highly prejudiced in the civil claim filed before the magistrate’s court but the appellant and the respondents will not be prejudiced in any way.
6. The State through the learned prosecution counsel maintains that it wishes to withdraw the appeal. It did not file submissions as directed by the court.
7. The respondents through their learned counsel submit that section 9 of the Victims Protection Act which the complainant relies upon is best suited to trial court proceedings and not appellate proceedings. Learned counsel submits further that the victim’s rights to a fair trial have not been infringed in any way as they were all aware of the proceedings in the appeal up to the point of the application for withdrawal by the State.
8. Citing Article 157(10) of the Constitution, learned counsel for the respondents submits that in the exercise of prosecutorial powers the DPP is not subject to the direction or control of any person or authority.
9. I have considered the application by the State to withdraw the appeal herein and the submissions by learned counsel for the respondent supporting the same and for the complainant opposing it.
10. There is no dispute that the DPP is the one vested with the mandate to exercise control over all criminal matters as provided for under Article 157 of the Constitution and the Office of the Director of Public Prosecutions Act (Cap. 6B) Laws of Kenya.
11. There is no dispute that the respondents herein were acquitted after a full trial before the magistrate’s court where all the rights to a fair hearing were accorded to all the parties.
12. The Director of Public Prosecutions (DPP) excises the right to appeal an acquittal under section 348A of the Criminal Procedure Code (Cap. 75) Laws of Kenya. The section gives the DPP the right of appeal against acquittal in the following terms:
(1) When an accused person has been acquitted on a trial held by a subordinate court or High Court, or where an order refusing to admit a complaint or formal charge, or an order dismissing a charge, has been made by a subordinate court or High Court, the Director of Public Prosecutions may appeal to the High Court or the Court of Appeal as the case may be, from the acquittal or order on a matter of fact and law.
(2) If the appeal under subsection (1) is successful, the High Court or Court of Appeal as the case may be, may substitute the acquittal with a conviction and may sentence the accused person appropriately.
13. I have not found a provision for withdrawal of an appeal by the DPP under the CPC and neither has the learned prosecution counsel or learned counsel for the respondents brought one to the attention of the court. The provisions for withdrawal under section 87(a) and 88(2) of the CPC relate to proceedings before the subordinate court.
14. It appears to me though that, where a person has been acquitted by the trial court and the DPP upon filing an appeal, but on further consideration of the case finds that it is not desirable to proceed with an appeal, he cannot be forced to do so either by the complainant or any other party as the DPP exercises independence of mind in these cases. Therefore, where the DPP has decided that it is not legal and proper to proceed with an appeal where the respondent has been subjected to a full trial, I think it is important that the decision be respected. That decision, I believe is made upon sound legal basis.
15. The complainant’s argument that he will be highly prejudiced in a civil case filed before the magistrate’s court does not hold much sway because first, there is no guarantee that the appeal was going to be decided in the appellant’s favour and second an acquittal in a criminal case does not mean that the civil case is compromised in any way as the two cases are decided on different standards of proof, as the standard of proof is lower in civil cases on a "balance of probabilities" as compared to "beyond a reasonable doubt" in criminal cases.
16. In the circumstances, I allow the appellant to withdraw this appeal.
17. There is no order for costs
18. Orders accordingly.
ANDAYI W. FRANCIS
JUDGE
Dated, signed and delivered on the virtual platform, Teams at Kwale this 3rd day of March 2025 in the presence of:
Ms Vallerie for the appellant.
Ms Matoki for the respondent.
Mutisya for the complainant.
Johnson court assistant.
2. After the record of appeal was filed, the State asked for and was granted time on several occasions to file submissions but it never did. Learned prosecution counsel/for the appellant kept asking for more time. Finally, on 30/9/2024, learned counsel for the appellant prayed for withdrawal of the criminal appeal.
3. Learned counsel for the appellant informed the court that she had consulted with her colleagues and they did not wish to proceed with the appeal. The court reserved the ruling for 2/10/2024.
4. When the case came up for delivery of the ruling on this date, Mr. Mutisya, learned counsel appeared and stated that he was for the complainant. He was allowed to address the court upon which he submitted that the complainant wished to be heard on the application by the State to withdraw the appeal. The court asked the appellant and the respondents as well as the complainant through his learned counsel to file submissions on the matter for its determination.
5. Mr. Mutisya learned counsel for the complainant submits that the appeal raises weighty grounds. He submits further that the victim will be deprived of his rights under the Victim Protection Act (Cap. 79A) Laws of Kenya and will be condemned unheard, will loss restorative justice and will be highly prejudiced in the civil claim filed before the magistrate’s court but the appellant and the respondents will not be prejudiced in any way.
6. The State through the learned prosecution counsel maintains that it wishes to withdraw the appeal. It did not file submissions as directed by the court.
7. The respondents through their learned counsel submit that section 9 of the Victims Protection Act which the complainant relies upon is best suited to trial court proceedings and not appellate proceedings. Learned counsel submits further that the victim’s rights to a fair trial have not been infringed in any way as they were all aware of the proceedings in the appeal up to the point of the application for withdrawal by the State.
8. Citing Article 157(10) of the Constitution, learned counsel for the respondents submits that in the exercise of prosecutorial powers the DPP is not subject to the direction or control of any person or authority.
9. I have considered the application by the State to withdraw the appeal herein and the submissions by learned counsel for the respondent supporting the same and for the complainant opposing it.
10. There is no dispute that the DPP is the one vested with the mandate to exercise control over all criminal matters as provided for under Article 157 of the Constitution and the Office of the Director of Public Prosecutions Act (Cap. 6B) Laws of Kenya.
11. There is no dispute that the respondents herein were acquitted after a full trial before the magistrate’s court where all the rights to a fair hearing were accorded to all the parties.
12. The Director of Public Prosecutions (DPP) excises the right to appeal an acquittal under section 348A of the Criminal Procedure Code (Cap. 75) Laws of Kenya. The section gives the DPP the right of appeal against acquittal in the following terms:
(1) When an accused person has been acquitted on a trial held by a subordinate court or High Court, or where an order refusing to admit a complaint or formal charge, or an order dismissing a charge, has been made by a subordinate court or High Court, the Director of Public Prosecutions may appeal to the High Court or the Court of Appeal as the case may be, from the acquittal or order on a matter of fact and law.
(2) If the appeal under subsection (1) is successful, the High Court or Court of Appeal as the case may be, may substitute the acquittal with a conviction and may sentence the accused person appropriately.
13. I have not found a provision for withdrawal of an appeal by the DPP under the CPC and neither has the learned prosecution counsel or learned counsel for the respondents brought one to the attention of the court. The provisions for withdrawal under section 87(a) and 88(2) of the CPC relate to proceedings before the subordinate court.
14. It appears to me though that, where a person has been acquitted by the trial court and the DPP upon filing an appeal, but on further consideration of the case finds that it is not desirable to proceed with an appeal, he cannot be forced to do so either by the complainant or any other party as the DPP exercises independence of mind in these cases. Therefore, where the DPP has decided that it is not legal and proper to proceed with an appeal where the respondent has been subjected to a full trial, I think it is important that the decision be respected. That decision, I believe is made upon sound legal basis.
15. The complainant’s argument that he will be highly prejudiced in a civil case filed before the magistrate’s court does not hold much sway because first, there is no guarantee that the appeal was going to be decided in the appellant’s favour and second an acquittal in a criminal case does not mean that the civil case is compromised in any way as the two cases are decided on different standards of proof, as the standard of proof is lower in civil cases on a "balance of probabilities" as compared to "beyond a reasonable doubt" in criminal cases.
16. In the circumstances, I allow the appellant to withdraw this appeal.
17. There is no order for costs
18. Orders accordingly.
ANDAYI W. FRANCIS
JUDGE
Dated, signed and delivered on the virtual platform, Teams at Kwale this 3rd day of March 2025 in the presence of:
Ms Vallerie for the appellant.
Ms Matoki for the respondent.
Mutisya for the complainant.
Johnson court assistant.