1. The applicant in this matter approached this court by way of a revision seeking to overturn a decision of the trial court declining to allow the DPP to withdraw the case in Republic V. Honey Khatwani Milimani CMCR E347 of 2025.
2. The interested party in this matter who is the complainant in the lower court filed the instant preliminary objection raising the following grounds;-
a). that the Notice of Motion is incompetent, misconceived and an abuse of the process of this Honourable Court as it seeks to invoke this Court's revisionary jurisdiction under Sections 362 and 364 of the Criminal Procedure Code for a purpose not contemplated by law, namely to procure the termination of a pending criminal trial.
b). that the application is contrary to Article 157(11) of the Constitution as it invites this Honourable Court to sanction the exercise of prosecutorial discretion without demonstrating compliance with the constitutional requirements that the Director of Public Prosecutions act in the public interest, the interests of the administration of justice and the need to prevent and avoid abuse of the legal process.
c). that the application violates the constitutional and statutory rights of victims of crime guaranteed under Article 50(9) of the Constitution and Sections 4, 9 and 13 of the Victim Protection Act, 2014, by seeking to terminate the criminal proceedings without the effective participation of the complainant, whose rights and legitimate interests are directly affected by the intended withdrawal.
d). that the application seeks to defeat the due administration of criminal justice by inviting this Honourable Court to terminate a criminal prosecution on the basis of alleged civil settlements contrary to Section 193A of the Criminal Procedure Code, which expressly provides that the existence or pendency of civil proceedings shall not be a ground for staying, prohibiting or terminating criminal proceedings founded upon the same facts.
e) that the application is premature and legally untenable as it seeks to terminate the criminal proceedings notwithstanding the existence of pending proceedings arising from the same transaction, including proceedings before the Tax Appeals Tribunal being TAT No. E933 of 2025, Kenya Revenue Authority v OKI General Trading Kenya Limited , ongoing investigations directed by the trial court relating to allegations of perjury and related matters, and pending civil enforcement proceedings, all of which remain unresolved, thereby undermining the due administration of justice.
f). that the application improperly invites this Honourable Court to exercise its revisionary jurisdiction in a manner that would shield the Respondent from criminal accountability notwithstanding that the criminal proceedings are substantially heard and only a few prosecution witnesses remain before the close of the prosecution case, contrary to the constitutional principles of the rule of law, equality before the law, access to justice, fair hearing and the administration of justice under Articles 10, 27, 48, 50 and 159 of the Constitution.
g). that the application is legally untenable as it seeks to rely upon an alleged consent arising from separate civil proceedings as the basis for terminating the criminal proceedings, notwithstanding that the said consent has neither been fully performed nor adopted by the court upon which reliance is placed and is therefore incapable in law of founding the orders sought.
h). that the application improperly invites this Honourable Court to employ its revisionary jurisdiction to circumvent the statutory safeguards governing the withdrawal of criminal proceedings under Section 87(a) of the Criminal Procedure Code and the constitutional safeguards established under Article 157(11) of the Constitution.
i). that the Notice of Motion is otherwise incompetent, misconceived and an abuse of the process of this Honourable Court and ought to be struck out with costs.
3. At the hearing of the preliminary objection Mr. Wambugu for the respondent invoked Section 362 & 364 of Criminal Procedure Code.
4. According to counsel, the applicant's invocation of the two provisions is not contemplated by law. He submitted that the invocation of Section 362 & 364 relates to irregularity incorrectness or Illegality.
5. Counsel argued that the applicant ought to filed an appeal not a revision. He further argued that the Application by DPP is seeking to have DPP allowed to exercise discretion yet he must act within public interest.
6. The respondent contended that the application violates victim’s rights under Article 50(9) of the Constitution. According to him, the Applicant seeks to terminate the proceedings contrary to Section 193A of the Criminal Procedure Code.
7. He further argued that the applicant has invited the court to exercise revisionary jurisdiction in a manner that seeks to shield the Respondent from Criminal Proceedings/Accountability.
8. The respondent informed the court that Seven witnesses have already testified and that the proceedings should be allowed to proceed to the logical conclusion.
9. Counsel argued that reliance on a consent recorded in HCCCOM/E359/ 2025 which was never recorded in the Criminal Proceedings was improper since the two matters are unique and distinct.
10. Mr. Owiti for the applicant submitted in opposition to the preliminary objection that the Court under Article 165(6) & (7) can call for records of the Lower Court and that the provisions of Section 362 & 364 are derivatives of Article 165(6) & (7) and that they expound on the power to call for records.
11. According to Counsel the section empowers the court to call for the record and ascertain illegality incorrectness or irregularity. The Court must review the record of the Lower court record.
12. The Court looks at the factual matrix.
13. Counsel went on to state that courts frown upon interlocutory appeals thus the reason behind them not preferring an appeal.
14. He went on to argue that it is the DPP complaining about being denied the right to withdraw the case.
15. Counsel urged the court to strike out the preliminary objection for it does not raise pure points of law and would require an examination of facts.
16. Mr Hasham appearing for the respondent associated himself with the submissions of counsel for the state and urged the court to decline granting the Preliminary Objection.
ANALYSIS AND DETERMINATION
17. The law on preliminary objection is well settled. The often cited case of Mukisa Biscuits Ltd v West End Distributors Ltd (1969) EA 696 is the locus classicus. In that case, Law JA and Newbold P. held as follows:-
"So far as I am aware, a preliminary objection consists of a point of Law which has been pleaded, or which arises by clear implication out of the pleadings, and which if argued as a preliminary objection may dispose of the suit. Examples are an objection to the jurisdiction of the court, or a plea of limitation, or a submission that the parties are bound by the contract giving rise to the suit to refer the dispute to arbitration."
Sir Newbold P. stated in the same decision as follows:-
"A preliminary objection is in the nature of what used to be a demurrer. It raises a pure point of law which is argued on the assumption that all the facts pleaded by the other side are correct. It cannot be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion. The improper raising of points by way of preliminary objection does nothing but unnecessary increase costs and, on occasion, confuse the issues. This improper practice should stop."
18. The party raising a preliminary objection has the duty to demonstrate that the legal issue raised has the capability of disposing the entire matter fully on a pure point of law discernible from the pleadings. The preliminary objection ought to be straightforward and not an argumentative contention that would require interrogation of facts and evidence.
19. This has stood the test of time and was cited in the case of Jotham Mulati Welamondi v The Chairman Electoral Commission of Kenya [2002] eKLR where the eloquent Ringera J. (as he then was) had this to say:
“I am also of the opinion that the only objections which could not be so taken are those predicated on disputed facts or which called upon the court to exercise its discretion. In the latter regard I would invoke the authority of Mukisa Biscuits Ltd v West End Distributors Ltd (1969) E.A 696 on the scope and meaning of preliminary objections.
20. The applicant has raised matters that would require a full interrogation of facts and evidence by either party.
21. All the matters raised by the interested party would require the court to go into the facts of the matter a task that would best be performed at the full hearing of the revision.
22. It must be remembered that the revision would strictly look into irregularities, illegality, incorrectness and the propriety of the decision by the learned Honorable Magistrate.
23. The victim largely complains that the DPP proceeded to seek the withdrawal of the criminal matter without any input from their end. The nature of the complaint would require evidence and since it is not admitted by the applicant and from the pleadings this court cannot glean the same from the record, the proper thing to do in the circumstances would be to give the parties an opportunity to canvass the matter fully at the hearing of the Revision.
24. The striking out of a revision application touching on a criminal matter where the liberty of an individual is at stake is a drastic recourse and should not be done except in the clearest of cases. The court would be inclined to strike out a revision if only it is shown to be so hopeless that entertaining the same would amount to a waste of precious judicial time or is simply calculated to delay justice for the sake of it.
25. Since there was a judicial pronouncement made by the trial court, it would only be fair to have the impugned ruling subject to scrutiny by the court in exercise of its powers under Sections 362 and 364 of the Criminal Procedure code as read together with the provisions of Article 165(6) of the Constitution.
26. The upshot of the above is that the preliminary objection is dismissed and the Revision application shall immediately be set down for hearing.
27. It is so ordered.
2. The interested party in this matter who is the complainant in the lower court filed the instant preliminary objection raising the following grounds;-
a). that the Notice of Motion is incompetent, misconceived and an abuse of the process of this Honourable Court as it seeks to invoke this Court's revisionary jurisdiction under Sections 362 and 364 of the Criminal Procedure Code for a purpose not contemplated by law, namely to procure the termination of a pending criminal trial.
b). that the application is contrary to Article 157(11) of the Constitution as it invites this Honourable Court to sanction the exercise of prosecutorial discretion without demonstrating compliance with the constitutional requirements that the Director of Public Prosecutions act in the public interest, the interests of the administration of justice and the need to prevent and avoid abuse of the legal process.
c). that the application violates the constitutional and statutory rights of victims of crime guaranteed under Article 50(9) of the Constitution and Sections 4, 9 and 13 of the Victim Protection Act, 2014, by seeking to terminate the criminal proceedings without the effective participation of the complainant, whose rights and legitimate interests are directly affected by the intended withdrawal.
d). that the application seeks to defeat the due administration of criminal justice by inviting this Honourable Court to terminate a criminal prosecution on the basis of alleged civil settlements contrary to Section 193A of the Criminal Procedure Code, which expressly provides that the existence or pendency of civil proceedings shall not be a ground for staying, prohibiting or terminating criminal proceedings founded upon the same facts.
e) that the application is premature and legally untenable as it seeks to terminate the criminal proceedings notwithstanding the existence of pending proceedings arising from the same transaction, including proceedings before the Tax Appeals Tribunal being TAT No. E933 of 2025, Kenya Revenue Authority v OKI General Trading Kenya Limited , ongoing investigations directed by the trial court relating to allegations of perjury and related matters, and pending civil enforcement proceedings, all of which remain unresolved, thereby undermining the due administration of justice.
f). that the application improperly invites this Honourable Court to exercise its revisionary jurisdiction in a manner that would shield the Respondent from criminal accountability notwithstanding that the criminal proceedings are substantially heard and only a few prosecution witnesses remain before the close of the prosecution case, contrary to the constitutional principles of the rule of law, equality before the law, access to justice, fair hearing and the administration of justice under Articles 10, 27, 48, 50 and 159 of the Constitution.
g). that the application is legally untenable as it seeks to rely upon an alleged consent arising from separate civil proceedings as the basis for terminating the criminal proceedings, notwithstanding that the said consent has neither been fully performed nor adopted by the court upon which reliance is placed and is therefore incapable in law of founding the orders sought.
h). that the application improperly invites this Honourable Court to employ its revisionary jurisdiction to circumvent the statutory safeguards governing the withdrawal of criminal proceedings under Section 87(a) of the Criminal Procedure Code and the constitutional safeguards established under Article 157(11) of the Constitution.
i). that the Notice of Motion is otherwise incompetent, misconceived and an abuse of the process of this Honourable Court and ought to be struck out with costs.
3. At the hearing of the preliminary objection Mr. Wambugu for the respondent invoked Section 362 & 364 of Criminal Procedure Code.
4. According to counsel, the applicant's invocation of the two provisions is not contemplated by law. He submitted that the invocation of Section 362 & 364 relates to irregularity incorrectness or Illegality.
5. Counsel argued that the applicant ought to filed an appeal not a revision. He further argued that the Application by DPP is seeking to have DPP allowed to exercise discretion yet he must act within public interest.
6. The respondent contended that the application violates victim’s rights under Article 50(9) of the Constitution. According to him, the Applicant seeks to terminate the proceedings contrary to Section 193A of the Criminal Procedure Code.
7. He further argued that the applicant has invited the court to exercise revisionary jurisdiction in a manner that seeks to shield the Respondent from Criminal Proceedings/Accountability.
8. The respondent informed the court that Seven witnesses have already testified and that the proceedings should be allowed to proceed to the logical conclusion.
9. Counsel argued that reliance on a consent recorded in HCCCOM/E359/ 2025 which was never recorded in the Criminal Proceedings was improper since the two matters are unique and distinct.
10. Mr. Owiti for the applicant submitted in opposition to the preliminary objection that the Court under Article 165(6) & (7) can call for records of the Lower Court and that the provisions of Section 362 & 364 are derivatives of Article 165(6) & (7) and that they expound on the power to call for records.
11. According to Counsel the section empowers the court to call for the record and ascertain illegality incorrectness or irregularity. The Court must review the record of the Lower court record.
12. The Court looks at the factual matrix.
13. Counsel went on to state that courts frown upon interlocutory appeals thus the reason behind them not preferring an appeal.
14. He went on to argue that it is the DPP complaining about being denied the right to withdraw the case.
15. Counsel urged the court to strike out the preliminary objection for it does not raise pure points of law and would require an examination of facts.
16. Mr Hasham appearing for the respondent associated himself with the submissions of counsel for the state and urged the court to decline granting the Preliminary Objection.
ANALYSIS AND DETERMINATION
17. The law on preliminary objection is well settled. The often cited case of Mukisa Biscuits Ltd v West End Distributors Ltd (1969) EA 696 is the locus classicus. In that case, Law JA and Newbold P. held as follows:-
"So far as I am aware, a preliminary objection consists of a point of Law which has been pleaded, or which arises by clear implication out of the pleadings, and which if argued as a preliminary objection may dispose of the suit. Examples are an objection to the jurisdiction of the court, or a plea of limitation, or a submission that the parties are bound by the contract giving rise to the suit to refer the dispute to arbitration."
Sir Newbold P. stated in the same decision as follows:-
"A preliminary objection is in the nature of what used to be a demurrer. It raises a pure point of law which is argued on the assumption that all the facts pleaded by the other side are correct. It cannot be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion. The improper raising of points by way of preliminary objection does nothing but unnecessary increase costs and, on occasion, confuse the issues. This improper practice should stop."
18. The party raising a preliminary objection has the duty to demonstrate that the legal issue raised has the capability of disposing the entire matter fully on a pure point of law discernible from the pleadings. The preliminary objection ought to be straightforward and not an argumentative contention that would require interrogation of facts and evidence.
19. This has stood the test of time and was cited in the case of Jotham Mulati Welamondi v The Chairman Electoral Commission of Kenya [2002] eKLR where the eloquent Ringera J. (as he then was) had this to say:
“I am also of the opinion that the only objections which could not be so taken are those predicated on disputed facts or which called upon the court to exercise its discretion. In the latter regard I would invoke the authority of Mukisa Biscuits Ltd v West End Distributors Ltd (1969) E.A 696 on the scope and meaning of preliminary objections.
20. The applicant has raised matters that would require a full interrogation of facts and evidence by either party.
21. All the matters raised by the interested party would require the court to go into the facts of the matter a task that would best be performed at the full hearing of the revision.
22. It must be remembered that the revision would strictly look into irregularities, illegality, incorrectness and the propriety of the decision by the learned Honorable Magistrate.
23. The victim largely complains that the DPP proceeded to seek the withdrawal of the criminal matter without any input from their end. The nature of the complaint would require evidence and since it is not admitted by the applicant and from the pleadings this court cannot glean the same from the record, the proper thing to do in the circumstances would be to give the parties an opportunity to canvass the matter fully at the hearing of the Revision.
24. The striking out of a revision application touching on a criminal matter where the liberty of an individual is at stake is a drastic recourse and should not be done except in the clearest of cases. The court would be inclined to strike out a revision if only it is shown to be so hopeless that entertaining the same would amount to a waste of precious judicial time or is simply calculated to delay justice for the sake of it.
25. Since there was a judicial pronouncement made by the trial court, it would only be fair to have the impugned ruling subject to scrutiny by the court in exercise of its powers under Sections 362 and 364 of the Criminal Procedure code as read together with the provisions of Article 165(6) of the Constitution.
26. The upshot of the above is that the preliminary objection is dismissed and the Revision application shall immediately be set down for hearing.
27. It is so ordered.