INTRODUCTION
1. By way of a Notice of Motion dated 13 th August 2025 expressed to be brought under Articles 50, 157, 165 of the Constitution Of Kenya as read together with Section, 87(A), 362 and 364 Of The Criminal Procedure Code the applicant sought to challenge the decision of the learned Hon Magistrate declining to allow the withdrawal of Milimani MCCR CRIMINAL CASE NO. E632 OF 2024 Republic Vs Super Hakika limited and Kotecha Jayesh kumar Guarav & 2 others.
2. The applicant in particular sought the following orders;-
i). THAT this Application herein be certified urgent and be heard in the first instance and the Honourable court be pleased to grant an order of stay of the proceedings in Milimani MCCR E632 of 2021 Republic Vs Super Hakika limited and Kotecha Jayeshkumar Guarav & 2 others. ( spent)
ii). THAT this Honourable court be pleased to call for and examine the record of the proceedings in Milimani MCCR CRIMINAL CASE NO. E632 OF 2024 Republic Vs Super Hakika limited and Kotecha Jayesh kumar Guarav & 2 others to satisfy itself as to the correctness, legality or propriety of the Ruling delivered by Hon. Carolyne Nyaguthi Mugo(PM) on the 29th day of July, 2025.
iii). THAT this Honourable Court be pleased to review, vary, reverse, set aside and/or quash the decision of the Trial Magistrate which dismissed the Applicant's Application to withdraw the charges against the Respondents.
iv). THAT upon setting aside the said ruling dismissing the Applicant's Application to withdraw the charges against the Respondents in MCCR CRIMINAL CASE NO. E632 OF 2024 Republic Vs Super Hakika Limited and Kotecha Jayesh Kumar Guarav & 2 others the said case be deemed as withdrawn under Section 87(a) of the Criminal Procedure Code
v). Any further orders this Honourable Court may deem fit to grant.
3. The application was premised on the following grounds;-
a). THAT on the 31st July 2024, the Respondents herein were charged with various offenses, inter alia of conspiracy to defraud and fraudulent disposition of mortgaged goods, whereof the Respondents pleaded not guilty and the matter was yet to proceed for hearing as no witnesses testified.
b). THAT at the time of deciding to charge it had not been brought to the attention of the DPP of the existence of two petitions in the High Court for insolvency, being High Court Petitions E012 of 2019 and E008 of 2019, where the issue for determination was the property, which was the subject of investigation in this matter.
c). THAT the trial magistrate gravely erred in law and fact by failing to appreciate that it is the mandate of the DPP to independently review a case by applying the evidential and the public interest test through the process of objective assessment in totality of the evidence both in favour for or against the accused, and satisfy himself that it establishes or maintains a realistic prospect of conviction.
d. THAT the trial magistrate further misconstrued the law and facts and thereby failed to appreciate that it is not in the public interest or in the interest of administration of justice to allow the criminal justice process to be used as a pawn in civil disputes and that it is unconscionable and a travesty of justice for the criminal trial to be involved in the settlement of what is purely civil dispute already being litigated upon in court.
e. THAT the Respondent wrote a letter to the DPP drawing his attention to the aforesaid two Petitions and requesting for review of the decision to charge.
f). The DPP in exercise of his constitutional powers and statutory authority granted under section 5(4)(e) of the ODPP Act undertook a thorough review of the evidence on record vis-à-vis the new information and documents which were made available by the Respondents and established that the dispute between the parties was civil and the best forum to determine the issues concerning the property which were the subject of investigation by the police was in the two insolvency petitions.
f. THAT the DPP took into account the interest of justice, public interest and fair administration of justice, and the need to prevent abuse of the legal process, sought to have the charges against the Respondents withdrawn under section 87(a) of the Criminal Procedure Code.
g. THAT Article 157(6) of the Constitution and section 5(4)(e) of the ODPP Act gives powers to the DPP to review a case and may discontinue at any stage before judgment is delivered, any criminal proceedings instituted by the DPP or taken over.
h. THAT under the National Prosecution Policy the DPP can only proceed to charge and prosecute a case which meets the evidential test and the public interest test, and it is the mandate of DPP to ensure that if a matter does not meet the threshold of either of the two tests that the same be discontinued and that the said decision of the DPP is made without the influence or control of any authority or any person, not even the complainant nor the Court.
i. THAT it was on that premise that the DPP established that prosecution of the Respondents would not be in the public interest, as any contrary decision of the High Court in the two pending insolvency petitions would have serious ramifications on the decision of the lower court.
j). THAT the criminal case was hinged upon the civil dispute between the parties and that the parties had, in the first instance, chosen to resolve the issues between themselves through the insolvency petitions.
k. THAT the Applicant is gravely prejudiced by the ruling delivered on the 29th July, 2025, as the same was made in wrongful exercise of the court's discretion.
1. THAT in usurpation of the Applicant's mandate under Article 157(6) of the Constitution, the Honorable Trial Magistrate concluded that the reasons advanced by the Applicant were not sufficient
m. THAT indeed section 193A of the Criminal Procedure Code provides for concurrent criminal and civil proceedings; however, if the DPP establishes that the criminal proceedings would not be in the public interest or would amount to abuse and misuse of criminal process, then the criminal proceedings must be halted.
n. THAT jurisprudence shows that the standard of review of the discretion of DPP (the Applicant) to prosecute or not to prosecute is high, and courts can only interfere with the exercise of discretion sparingly.
0. THAT the constitutional provision in Article 157(10) of the Constitution ensures that the DPP has complete independence in his decision-making process, which is vital to protect the integrity of the criminal justice system because it guarantees that any decision to prosecute a person is made free of any external influences.
p. THAT it is in the interest of justice that the proceedings in MILIMANI MCCR E632 of 2023 be stayed pending the hearing and determination of this Application.
q. THAT it is in the interest of justice that this Honorable Court be pleased to review, vary, reverse, and/or alter the Ruling dismissing the Applicant's Application to withdraw the charges against the Respondents in MCCR CRIMINAL CASE NO. E632 OF 2024.
4. The application was further supported by an affidavit sworn by James Omondi Opundo, an Advocate of the High Court of Kenya and Prosecution Counsel in the Office of the Director of Public Prosecutions (ODPP), who deposed that he was duly authorized to act in the matter and fully conversant with the facts of the matter.
5. The deponent averred that on 31st July 2024, the Respondents were charged with various offences, including conspiracy to defraud and fraudulent disposition of mortgaged goods, to which they pleaded not guilty.
6. He deposed that the criminal case had not proceeded to hearing as no witnesses had testified by the time the prosecution applied to withdraw the matter.
7. He further averred that, at the time the decision to charge the Director of Public Prosecutions was unaware of the existence of High Court Insolvency Petitions E012 of 2019 and E008 of 2019, in which the property forming the subject of the criminal investigations was already directly in issue. A copy of the charge sheet is annexed and marked “OJ-1.”
8. The deponent further stated that the Respondents subsequently wrote to the DPP requesting a review of the decision to prosecute after bringing the existence of the two insolvency petitions to the DPP’s attention. Pursuant to the constitutional mandate conferred under Article 157 of the Constitution and the statutory powers under Section 5(4)(e) of the Office of the Director of Public Prosecutions Act .
9. According to Mr Omondi the DPP undertook a comprehensive review of the evidence together with the additional information and documents supplied by the Respondents.
10. Upon review, the DPP concluded that the dispute between the parties was essentially civil in nature and that the most appropriate forum for determining the issues relating to the disputed property was the two pending insolvency petitions before the High Court.
11. The deponent averred that, having considered the interests of justice, public interest, the fair administration of justice, and the need to prevent abuse of the legal process, the DPP sought to withdraw the charges against the Respondents pursuant to Section 87(a) of the Criminal Procedure Code .
12. The deponent deposed that the trial magistrate erred both in law and in fact by failing to appreciate the DPP’s constitutional mandate to independently review criminal cases through the application of both the evidential test and the public interest test, and to determine objectively whether there existed a realistic prospect of conviction. The impugned ruling of the trial court is annexed and marked “OJ-2.”
13. The deponent further posited that the trial magistrate misconstrued both the law and the facts by failing to recognize that it is contrary to the public interest and the proper administration of justice for the criminal justice system to be used as a means of advancing or settling disputes that are fundamentally civil in nature, particularly where such disputes are already pending before a competent civil court.
14. He went further to state that allowing the criminal proceedings to continue in those circumstances would amount to an abuse of the criminal process and a miscarriage of justice.
15. Counsel for the applicant maintained that the DPP properly exercised his discretion by seeking withdrawal of the charges under Section 87(a) of the Criminal Procedure Code.
16. The deponent further averred that Article 157(6) of the Constitution together with Section 5(4)(e) of the Office of the Director of Public Prosecutions Act expressly empower the DPP to review criminal proceedings and discontinue any prosecution instituted or taken over by the DPP at any stage before judgment is delivered.
17. He further deposed that, under the National Prosecution Policy , the DPP is only permitted to prosecute matters that satisfy both the evidential test and the public interest test.
18. Counsel further deposed that the constitutional and statutory mandate of the DPP is exercised independently, without direction, influence or control from any person or authority, including the complainant or the court, and that any matter failing either test ought to be discontinued.
19. The deponent further contended that, based upon the foregoing constitutional and policy considerations, the DPP concluded that continuing the prosecution of the Respondents would not serve the public interest, particularly because any determination made by the High Court in the pending insolvency proceedings could substantially affect or contradict the outcome of the criminal proceedings before the subordinate court.
20. The deponent further stated that the criminal proceedings were entirely founded upon a civil dispute between the parties, who had already elected to resolve their dispute through insolvency proceedings instituted more than five years prior to the commencement of the criminal prosecution.
21. The deponent avers that the Applicant has suffered substantial prejudice arising from the ruling delivered on 29th July 2025, contending that the learned trial magistrate improperly exercised her judicial discretion by declining the DPP’s application to withdraw the charges.
22. He further contended that the trial magistrate unlawfully usurped the constitutional powers of the DPP under Article 157(6) of the Constitution by finding that the reasons advanced for withdrawal were insufficient despite there being no evidence contradicting or undermining the DPP’s decision.
23. The affidavit acknowledges that Section 193A of the Criminal Procedure Code permits the concurrent existence of civil and criminal proceedings. Nevertheless, the deponent maintained that where the DPP determines that criminal proceedings are no longer in the public interest or amount to an abuse of the criminal justice system, such proceedings ought to be discontinued.
24. The deponent further stated that the subordinate court failed to appreciate that Articles 157(6), (7), (8), (10) and (11) of the Constitution that vest the DPP with exclusive authority to institute, undertake, continue, take over, and discontinue criminal prosecutions on behalf of the State.
25. It was further contended that the learned magistrate misconstrued her role under Section 87(a) of the Criminal Procedure Code by adopting an unduly restrictive interpretation of the provision instead of recognizing that the court’s function was primarily facilitative where the D PP had lawfully exercised his constitutional discretion.
26. The deponent maintained that there was no evidence before the trial court demonstrating that the DPP’s decision to discontinue the prosecution was arbitrary, capricious, whimsical, or unsupported by the facts and the law.
27. The deponent further averred that the trial court ought not to have interfered with the exercise of the DPP’s constitutional and statutory mandate, but instead ought to have recognized that prosecutorial discretion is exercised under the authority of the Constitution and relevant legislation.
28. The deponent further explains that Section 87(a) of the Criminal Procedure Code is an enabling provision permitting the public prosecutor, with the consent of the court, to withdraw charges at any stage before judgment.
29. The deponent averred that it was in the interests of justice for the High Court to determine the issues raised in the application and provide authoritative guidance to subordinate courts on the proper interpretation and application of Section 87(a) of the Criminal Procedure Code .
APPLICANT’S SUBMISSIONS
30. In support of the application the applicant submitted that Respondents were charged with conspiracy to defraud contrary to section 317 of the Penal Code, fraudulent disposition of mortgaged goods contrary to section 291 as read with section 36 of the Penal Code, performing a management function in a company under administration without consent of the administrator contrary to sections 581(1) and 581(3) of the Insolvency Act, and failure to submit a statement of company affairs contrary to section 565(4) of the Penal Code.
31. On 11th June 2025, the prosecution applied under Section 87(a) of the Criminal Procedure Code to withdraw the charges, on grounds that two pending insolvency petitions being Petition Nos. E012 of 2019 and E008 of 2019 deal with the same issues underlying the charges, and that upon review the matter it appeared to be more of a civil nature rather than criminal redress.
32. According to the applicant the trial magistrate dismissed the application, holding that the prosecution had failed to demonstrate that the withdrawal was made in the public interest, in the interest of the administration of justice, or to prevent abuse of legal process.
33. Further, that the complainant maintained there was sufficient evidence of criminal culpability with witnesses ready to testify; and that the prosecution was thereby abusing its powers.
34. The applicant thus set out four issues for determination:
(1) the scope and extent of the High Court's revisionary jurisdiction;
(2) the constitutional and statutory mandate of the DPP in instituting, reviewing, and terminating criminal proceedings;
(3) the principles guiding a trial court's determination of a withdrawal application; and
(4) whether the trial court's orders were correct, legal, and proper.
II. ISSUE ONE: SCOPE OF THE HIGH COURT'S REVISIONARY JURISDICTION
35. The Applicant relied on Article 165(6) and (7) of the Constitution, which provides:
"(6) The High Court has supervisory jurisdiction over the subordinate courts and over any person, body or authority exercising a judicial or quasi-judicial function, but over a superior court.
(7) For the purposes of clause (6), the High Court may call for the record of any proceedings before any subordinate court or person, body or authority referred to in clause (6), and may make any order or give any direction it considers appropriate to ensure the fair administration of justice."
36. The applicant further cited Section 362 of the Criminal Procedure Code which provides:
"The High Court may call and examine the record of any criminal proceedings before any subordinate court for the purpose of satisfying itself as to the correctness, legality or propriety of any finding, sentence or order recorded or passed and as to the regularity of any proceedings of any such subordinate court."
37. He also referred the court to the provisions of Section 364(1) and (2) of the Criminal Procedure Code provides:
"In the case of a proceeding in a subordinate court the record of which has been called for or which has been reported for orders or which otherwise comes to his knowledge, the High Court may;-
a). in the case of a conviction, exercise any of the powers conferred on it as a court of appeal by section 354, 357 and 358, and may enhance sentence;
b. In the case of any other order other than an order of acquittal alter or reverse the order.
(2) No order under this section shall be made to the prejudice of an accused person unless he has had an opportunity of being heard either personally or by an advocate in his own defence."
38. Counsel cited the case of Joseph Nduvi Mbuvi v Republic [2019] eKLR, in which the court held:
"In my considered view, the object of the revisional jurisdiction of the High Court is to enable the high Court in appropriate cases, whether during the pendency of the proceedings in the subordinate court or at the conclusion of the proceedings to correct manifest irregularities or illegalities and give appropriate directions on the manner in which the trial, if still ongoing, should be proceeded with. In other words, the High Court's revisionary jurisdiction includes ensuring that where the proceeding in the lower court has been legally derailed, necessary directions are given to bring the same back on track so that the trial proceeds towards its intended destination without hitches. Not only is the jurisdiction exercisable where the subordinate court has made a finding, sentence or order but goes on to state that it is also exercisable to determine the regularity of any proceedings of any such subordinate court as well."
39. The Applicant submitted therefore that this Honourable Court is possessed of the requisite jurisdiction to hear and determine the application.
III. ISSUE TWO: THE DPP'S CONSTITUTIONAL AND STATUTORY MANDATE
40. On the DPP’s powers the applicant relied on Article 157(6)(c) 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."
41. Counsel went on to cite Article 157(8) of the Constitution which further provides:
"The Director of Public Prosecutions may not discontinue a prosecution without the permission of the court."
42. The applicant also relied on Section 87(a) of the Criminal Procedure Code provides:
"In a trial before a subordinate court a public prosecutor may, with the consent of the court or on the instructions of the Director of Public Prosecutions, at any time before judgment is pronounced, withdraw from the prosecution of any person, and upon withdrawal— (a) if it is made before the accused person is called upon to make his defence, he shall be discharged, but discharge of an accused person shall not operate as a bar to subsequent proceedings against him on account of the same facts; (b) if it is made after the accused person is called upon to make his defence, he shall be acquitted."
43. The Applicant submitted that sufficient legal basis exist for the DPP to review and withdraw criminal cases, the only caveat being the requirement of the court's permission, which obliges the DPP to furnish grounds. The determinative question is whether the trial court was furnished with sound reasons warranting withdrawal. The applicant submitted that the reasons for withdrawal were sufficient.
IV. ISSUE THREE: PRINCIPLES GOVERNING WITHDRAWAL APPLICATIONS
44. Under this limb of submission, the applicant cited the case of Director of Public Prosecutions v Kiptoo & 6 others (Criminal Revision E1550 of 2024), where this court held, in guiding public prosecutors:
"I. Although the initiative emanates from the State, the Public Prosecutor who is in charge of the case shall act independently and shall not surrender his discretion to someone else.
II. The Public Prosecutor should apply his mind to the relevant materials made available to him and should satisfy himself that the facts warrant the exercise of his discretion to discontinue the prosecution.
III. The Public Prosecutor should act fairly uninfluenced by any irrelevant and extraneous considerations, and in good faith in the interest of public policy and justice but not to thwart or stifle the process of law.
IV. The Public Prosecutor must aver in his application that he is acting in good faith satisfied on consideration of all relevant material that his withdrawal from the prosecution is in the public interest and it will not stifle or thwart the process of law or cause injustice, and state briefly in the application or in an affidavit annexed to that application that the material has been considered for withdrawal; the considerations above if well taken into consideration by public prosecutors would bring about predictability and consistency in prosecutorial decision making to demystify the question of withdrawal of cases in Kenya."
The same authority, guiding trial courts, held:
"101. On the other hand, the trial courts should be guided by the following considerations in determining an application for withdrawal by the public prosecutor;- a. The opinion of the Court is no doubt supervisory but it should satisfy itself that the material perused by the Public Prosecutor should reasonably lead to the conclusion that the withdrawal of the Public Prosecutor will serve the public interest. b. In the process, the Court is not reappreciating the grounds, which led the Public Prosecutor to file an application for withdrawal. c. Both the Court as well as the Public Prosecutor are duty bound to protect the administration of criminal justice against the possible abuse or misuse of law by the executive. d. The Court cannot lightly interfere with the judgment of the Public Prosecutor unless it comes to the conclusion that he has not applied his mind as a free agent uninfluenced by irrelevant and extraneous considerations or that his decision is not bona fide. e. It is not for the Court to assess the evidence to discover whether the case would end in conviction or acquittal. All that the Court has to see is whether the application is made in good faith in the interest of public policy and justice and not to thwart or stifle the process of law. f. The Court has to satisfy itself that the executive function of the Public Prosecutor has not been improperly exercised or that it is not an attempt to interfere with the normal course of justice for illegitimate reasons or purposes. g. The consent shall not be given lightly on the mere application of the Public Prosecutor without careful and proper scrutiny of the grounds on which the application for consent is made." (Citing Public Interest Litigation by Justice P.S Narayana, Former Judge, High Court of Andhra Pradesh, and P. Jagadish Chandra Prasad, Advocate, High Court of Andhra Pradesh and High Court of Telangana, Foreword by Hon'ble Dr. Justice Motilal B. Naik, 6th Edition, pages 327–328.)
45. Building on this, the Applicant submitted that a trial court, in determining a withdrawal application, must consider whether the prosecution exercised its discretion independently and as a free agent, free of irrelevant or extraneous influence; whether the decision is bona fide and made in good faith; whether it is free of malice or improper purpose; whether it advances public interest and public policy; and whether it avoids abuse of court process.
46. The Applicant further submitted that, by virtue of Article 157 vesting independent constitutional mandate in the DPP, courts are obligated to accord due deference to prosecutorial discretion, and may only interfere upon clear demonstration — through cogent reasoning, not bare or conclusory statements — that the discretion contravenes Article 157(11).
V. ISSUE FOUR: WHETHER THE TRIAL COURT'S ORDERS WERE CORRECT, LEGAL, AND PROPER
47. The applicant in dealing with this aspect of the trial court’s decision cited the case of Prosecutor v Stephen Lesinko [2018] eKLR, where Nyakundi J outlined the principles guiding examination of issues under Section 362 of the Criminal Procedure Code:
"1. the decision is grossly erroneous; 2. Where there is no compliance with the provisions of the law; 3. Where the finding of fact affecting the decision is not based on evidence or it is result of misreading or non-reading of evidence on record; 4. Where the material evidence on the parties is not considered; 5. Where the judicial discretion is exercised arbitrarily or perversely if the lower Court ignores facts and tries the accused of lesser offence."
48. The applicant maintained that the decision by the trial court in rejecting the withdrawal application did not meet the propriety and legality test.
49. The applicant also cited Mohit v The Director of Public Prosecutions of Mauritius [2006] UKPC 20 (24 April 2006), where the Privy Council, considering reviewability of a DPP's decision to discontinue a prosecution, held:
"It may be accepted, however, that a purported exercise of power would be reviewable if it were made: i. In excess of the DPP's constitutional or statutory grants of power— such as an attempt to institute proceedings in a court established by a disciplinary law (see s 96(4)(a). ii. When, contrary to the provisions of the Constitution, the DPP could be shown to have acted under the direction or control of another person or authority and to have failed to exercise his or her own independent discretion— if the DPP were to act upon a political instruction the decision could be amenable to review. iii. In bad faith, for example, dishonesty. An example would arise if a prosecution were commenced or discontinued in consideration of the payment of a bribe. iv. In abuse of the process of the court in which it was instituted, although the proper forum for review of that action would ordinarily be the court involved. v. Where the DPP has fettered his or her discretion by a rigid policy— eg one that precludes prosecution of a specific class of offences."
50. In Republic v Njoroge & another (Criminal Appeal E002 of 2022), the court held:
"So, what do I make of this? Section 193A of the Criminal Procedure Code is specific on stay of criminal proceedings to give way to civil proceedings. It is emphatic, that criminal proceedings are not to be stayed, prohibited or delayed because of pending civil proceedings. There is no provision which says the same about civil proceedings, prohibiting stay of civil proceedings to give way to criminal proceedings. I do not read section 193A as saying that civil and criminal proceedings, on the same facts or same issues, can or should run concurrently. I understand it to be stating that where it happens that there are concurrent civil and criminal proceedings, then criminal proceedings should not be stayed because of the pending civil proceedings. 9. To my mind, section 193A bars stay of criminal proceedings, and there is an implicit suggestion that in the event of concurrent civil and criminal proceedings, it should be the civil proceedings that ought to give way. That would be logical, given that the heavier burden of proof is in criminal proceedings. There is more rigor in criminal proceedings, as a result, and the outcome of criminal proceedings should carry more weight. 10. Consequently, there is absolutely nothing wrong, with having civil proceedings stayed to await determination of pending criminal proceedings. In the instant case, the subject matter of the criminal proceedings and the civil proceed
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1. By way of a Notice of Motion dated 13 th August 2025 expressed to be brought under Articles 50, 157, 165 of the Constitution Of Kenya as read together with Section, 87(A), 362 and 364 Of The Criminal Procedure Code the applicant sought to challenge the decision of the learned Hon Magistrate declining to allow the withdrawal of Milimani MCCR CRIMINAL CASE NO. E632 OF 2024 Republic Vs Super Hakika limited and Kotecha Jayesh kumar Guarav & 2 others.
2. The applicant in particular sought the following orders;-
i). THAT this Application herein be certified urgent and be heard in the first instance and the Honourable court be pleased to grant an order of stay of the proceedings in Milimani MCCR E632 of 2021 Republic Vs Super Hakika limited and Kotecha Jayeshkumar Guarav & 2 others. ( spent)
ii). THAT this Honourable court be pleased to call for and examine the record of the proceedings in Milimani MCCR CRIMINAL CASE NO. E632 OF 2024 Republic Vs Super Hakika limited and Kotecha Jayesh kumar Guarav & 2 others to satisfy itself as to the correctness, legality or propriety of the Ruling delivered by Hon. Carolyne Nyaguthi Mugo(PM) on the 29th day of July, 2025.
iii). THAT this Honourable Court be pleased to review, vary, reverse, set aside and/or quash the decision of the Trial Magistrate which dismissed the Applicant's Application to withdraw the charges against the Respondents.
iv). THAT upon setting aside the said ruling dismissing the Applicant's Application to withdraw the charges against the Respondents in MCCR CRIMINAL CASE NO. E632 OF 2024 Republic Vs Super Hakika Limited and Kotecha Jayesh Kumar Guarav & 2 others the said case be deemed as withdrawn under Section 87(a) of the Criminal Procedure Code
v). Any further orders this Honourable Court may deem fit to grant.
3. The application was premised on the following grounds;-
a). THAT on the 31st July 2024, the Respondents herein were charged with various offenses, inter alia of conspiracy to defraud and fraudulent disposition of mortgaged goods, whereof the Respondents pleaded not guilty and the matter was yet to proceed for hearing as no witnesses testified.
b). THAT at the time of deciding to charge it had not been brought to the attention of the DPP of the existence of two petitions in the High Court for insolvency, being High Court Petitions E012 of 2019 and E008 of 2019, where the issue for determination was the property, which was the subject of investigation in this matter.
c). THAT the trial magistrate gravely erred in law and fact by failing to appreciate that it is the mandate of the DPP to independently review a case by applying the evidential and the public interest test through the process of objective assessment in totality of the evidence both in favour for or against the accused, and satisfy himself that it establishes or maintains a realistic prospect of conviction.
d. THAT the trial magistrate further misconstrued the law and facts and thereby failed to appreciate that it is not in the public interest or in the interest of administration of justice to allow the criminal justice process to be used as a pawn in civil disputes and that it is unconscionable and a travesty of justice for the criminal trial to be involved in the settlement of what is purely civil dispute already being litigated upon in court.
e. THAT the Respondent wrote a letter to the DPP drawing his attention to the aforesaid two Petitions and requesting for review of the decision to charge.
f). The DPP in exercise of his constitutional powers and statutory authority granted under section 5(4)(e) of the ODPP Act undertook a thorough review of the evidence on record vis-à-vis the new information and documents which were made available by the Respondents and established that the dispute between the parties was civil and the best forum to determine the issues concerning the property which were the subject of investigation by the police was in the two insolvency petitions.
f. THAT the DPP took into account the interest of justice, public interest and fair administration of justice, and the need to prevent abuse of the legal process, sought to have the charges against the Respondents withdrawn under section 87(a) of the Criminal Procedure Code.
g. THAT Article 157(6) of the Constitution and section 5(4)(e) of the ODPP Act gives powers to the DPP to review a case and may discontinue at any stage before judgment is delivered, any criminal proceedings instituted by the DPP or taken over.
h. THAT under the National Prosecution Policy the DPP can only proceed to charge and prosecute a case which meets the evidential test and the public interest test, and it is the mandate of DPP to ensure that if a matter does not meet the threshold of either of the two tests that the same be discontinued and that the said decision of the DPP is made without the influence or control of any authority or any person, not even the complainant nor the Court.
i. THAT it was on that premise that the DPP established that prosecution of the Respondents would not be in the public interest, as any contrary decision of the High Court in the two pending insolvency petitions would have serious ramifications on the decision of the lower court.
j). THAT the criminal case was hinged upon the civil dispute between the parties and that the parties had, in the first instance, chosen to resolve the issues between themselves through the insolvency petitions.
k. THAT the Applicant is gravely prejudiced by the ruling delivered on the 29th July, 2025, as the same was made in wrongful exercise of the court's discretion.
1. THAT in usurpation of the Applicant's mandate under Article 157(6) of the Constitution, the Honorable Trial Magistrate concluded that the reasons advanced by the Applicant were not sufficient
m. THAT indeed section 193A of the Criminal Procedure Code provides for concurrent criminal and civil proceedings; however, if the DPP establishes that the criminal proceedings would not be in the public interest or would amount to abuse and misuse of criminal process, then the criminal proceedings must be halted.
n. THAT jurisprudence shows that the standard of review of the discretion of DPP (the Applicant) to prosecute or not to prosecute is high, and courts can only interfere with the exercise of discretion sparingly.
0. THAT the constitutional provision in Article 157(10) of the Constitution ensures that the DPP has complete independence in his decision-making process, which is vital to protect the integrity of the criminal justice system because it guarantees that any decision to prosecute a person is made free of any external influences.
p. THAT it is in the interest of justice that the proceedings in MILIMANI MCCR E632 of 2023 be stayed pending the hearing and determination of this Application.
q. THAT it is in the interest of justice that this Honorable Court be pleased to review, vary, reverse, and/or alter the Ruling dismissing the Applicant's Application to withdraw the charges against the Respondents in MCCR CRIMINAL CASE NO. E632 OF 2024.
4. The application was further supported by an affidavit sworn by James Omondi Opundo, an Advocate of the High Court of Kenya and Prosecution Counsel in the Office of the Director of Public Prosecutions (ODPP), who deposed that he was duly authorized to act in the matter and fully conversant with the facts of the matter.
5. The deponent averred that on 31st July 2024, the Respondents were charged with various offences, including conspiracy to defraud and fraudulent disposition of mortgaged goods, to which they pleaded not guilty.
6. He deposed that the criminal case had not proceeded to hearing as no witnesses had testified by the time the prosecution applied to withdraw the matter.
7. He further averred that, at the time the decision to charge the Director of Public Prosecutions was unaware of the existence of High Court Insolvency Petitions E012 of 2019 and E008 of 2019, in which the property forming the subject of the criminal investigations was already directly in issue. A copy of the charge sheet is annexed and marked “OJ-1.”
8. The deponent further stated that the Respondents subsequently wrote to the DPP requesting a review of the decision to prosecute after bringing the existence of the two insolvency petitions to the DPP’s attention. Pursuant to the constitutional mandate conferred under Article 157 of the Constitution and the statutory powers under Section 5(4)(e) of the Office of the Director of Public Prosecutions Act .
9. According to Mr Omondi the DPP undertook a comprehensive review of the evidence together with the additional information and documents supplied by the Respondents.
10. Upon review, the DPP concluded that the dispute between the parties was essentially civil in nature and that the most appropriate forum for determining the issues relating to the disputed property was the two pending insolvency petitions before the High Court.
11. The deponent averred that, having considered the interests of justice, public interest, the fair administration of justice, and the need to prevent abuse of the legal process, the DPP sought to withdraw the charges against the Respondents pursuant to Section 87(a) of the Criminal Procedure Code .
12. The deponent deposed that the trial magistrate erred both in law and in fact by failing to appreciate the DPP’s constitutional mandate to independently review criminal cases through the application of both the evidential test and the public interest test, and to determine objectively whether there existed a realistic prospect of conviction. The impugned ruling of the trial court is annexed and marked “OJ-2.”
13. The deponent further posited that the trial magistrate misconstrued both the law and the facts by failing to recognize that it is contrary to the public interest and the proper administration of justice for the criminal justice system to be used as a means of advancing or settling disputes that are fundamentally civil in nature, particularly where such disputes are already pending before a competent civil court.
14. He went further to state that allowing the criminal proceedings to continue in those circumstances would amount to an abuse of the criminal process and a miscarriage of justice.
15. Counsel for the applicant maintained that the DPP properly exercised his discretion by seeking withdrawal of the charges under Section 87(a) of the Criminal Procedure Code.
16. The deponent further averred that Article 157(6) of the Constitution together with Section 5(4)(e) of the Office of the Director of Public Prosecutions Act expressly empower the DPP to review criminal proceedings and discontinue any prosecution instituted or taken over by the DPP at any stage before judgment is delivered.
17. He further deposed that, under the National Prosecution Policy , the DPP is only permitted to prosecute matters that satisfy both the evidential test and the public interest test.
18. Counsel further deposed that the constitutional and statutory mandate of the DPP is exercised independently, without direction, influence or control from any person or authority, including the complainant or the court, and that any matter failing either test ought to be discontinued.
19. The deponent further contended that, based upon the foregoing constitutional and policy considerations, the DPP concluded that continuing the prosecution of the Respondents would not serve the public interest, particularly because any determination made by the High Court in the pending insolvency proceedings could substantially affect or contradict the outcome of the criminal proceedings before the subordinate court.
20. The deponent further stated that the criminal proceedings were entirely founded upon a civil dispute between the parties, who had already elected to resolve their dispute through insolvency proceedings instituted more than five years prior to the commencement of the criminal prosecution.
21. The deponent avers that the Applicant has suffered substantial prejudice arising from the ruling delivered on 29th July 2025, contending that the learned trial magistrate improperly exercised her judicial discretion by declining the DPP’s application to withdraw the charges.
22. He further contended that the trial magistrate unlawfully usurped the constitutional powers of the DPP under Article 157(6) of the Constitution by finding that the reasons advanced for withdrawal were insufficient despite there being no evidence contradicting or undermining the DPP’s decision.
23. The affidavit acknowledges that Section 193A of the Criminal Procedure Code permits the concurrent existence of civil and criminal proceedings. Nevertheless, the deponent maintained that where the DPP determines that criminal proceedings are no longer in the public interest or amount to an abuse of the criminal justice system, such proceedings ought to be discontinued.
24. The deponent further stated that the subordinate court failed to appreciate that Articles 157(6), (7), (8), (10) and (11) of the Constitution that vest the DPP with exclusive authority to institute, undertake, continue, take over, and discontinue criminal prosecutions on behalf of the State.
25. It was further contended that the learned magistrate misconstrued her role under Section 87(a) of the Criminal Procedure Code by adopting an unduly restrictive interpretation of the provision instead of recognizing that the court’s function was primarily facilitative where the D PP had lawfully exercised his constitutional discretion.
26. The deponent maintained that there was no evidence before the trial court demonstrating that the DPP’s decision to discontinue the prosecution was arbitrary, capricious, whimsical, or unsupported by the facts and the law.
27. The deponent further averred that the trial court ought not to have interfered with the exercise of the DPP’s constitutional and statutory mandate, but instead ought to have recognized that prosecutorial discretion is exercised under the authority of the Constitution and relevant legislation.
28. The deponent further explains that Section 87(a) of the Criminal Procedure Code is an enabling provision permitting the public prosecutor, with the consent of the court, to withdraw charges at any stage before judgment.
29. The deponent averred that it was in the interests of justice for the High Court to determine the issues raised in the application and provide authoritative guidance to subordinate courts on the proper interpretation and application of Section 87(a) of the Criminal Procedure Code .
APPLICANT’S SUBMISSIONS
30. In support of the application the applicant submitted that Respondents were charged with conspiracy to defraud contrary to section 317 of the Penal Code, fraudulent disposition of mortgaged goods contrary to section 291 as read with section 36 of the Penal Code, performing a management function in a company under administration without consent of the administrator contrary to sections 581(1) and 581(3) of the Insolvency Act, and failure to submit a statement of company affairs contrary to section 565(4) of the Penal Code.
31. On 11th June 2025, the prosecution applied under Section 87(a) of the Criminal Procedure Code to withdraw the charges, on grounds that two pending insolvency petitions being Petition Nos. E012 of 2019 and E008 of 2019 deal with the same issues underlying the charges, and that upon review the matter it appeared to be more of a civil nature rather than criminal redress.
32. According to the applicant the trial magistrate dismissed the application, holding that the prosecution had failed to demonstrate that the withdrawal was made in the public interest, in the interest of the administration of justice, or to prevent abuse of legal process.
33. Further, that the complainant maintained there was sufficient evidence of criminal culpability with witnesses ready to testify; and that the prosecution was thereby abusing its powers.
34. The applicant thus set out four issues for determination:
(1) the scope and extent of the High Court's revisionary jurisdiction;
(2) the constitutional and statutory mandate of the DPP in instituting, reviewing, and terminating criminal proceedings;
(3) the principles guiding a trial court's determination of a withdrawal application; and
(4) whether the trial court's orders were correct, legal, and proper.
II. ISSUE ONE: SCOPE OF THE HIGH COURT'S REVISIONARY JURISDICTION
35. The Applicant relied on Article 165(6) and (7) of the Constitution, which provides:
"(6) The High Court has supervisory jurisdiction over the subordinate courts and over any person, body or authority exercising a judicial or quasi-judicial function, but over a superior court.
(7) For the purposes of clause (6), the High Court may call for the record of any proceedings before any subordinate court or person, body or authority referred to in clause (6), and may make any order or give any direction it considers appropriate to ensure the fair administration of justice."
36. The applicant further cited Section 362 of the Criminal Procedure Code which provides:
"The High Court may call and examine the record of any criminal proceedings before any subordinate court for the purpose of satisfying itself as to the correctness, legality or propriety of any finding, sentence or order recorded or passed and as to the regularity of any proceedings of any such subordinate court."
37. He also referred the court to the provisions of Section 364(1) and (2) of the Criminal Procedure Code provides:
"In the case of a proceeding in a subordinate court the record of which has been called for or which has been reported for orders or which otherwise comes to his knowledge, the High Court may;-
a). in the case of a conviction, exercise any of the powers conferred on it as a court of appeal by section 354, 357 and 358, and may enhance sentence;
b. In the case of any other order other than an order of acquittal alter or reverse the order.
(2) No order under this section shall be made to the prejudice of an accused person unless he has had an opportunity of being heard either personally or by an advocate in his own defence."
38. Counsel cited the case of Joseph Nduvi Mbuvi v Republic [2019] eKLR, in which the court held:
"In my considered view, the object of the revisional jurisdiction of the High Court is to enable the high Court in appropriate cases, whether during the pendency of the proceedings in the subordinate court or at the conclusion of the proceedings to correct manifest irregularities or illegalities and give appropriate directions on the manner in which the trial, if still ongoing, should be proceeded with. In other words, the High Court's revisionary jurisdiction includes ensuring that where the proceeding in the lower court has been legally derailed, necessary directions are given to bring the same back on track so that the trial proceeds towards its intended destination without hitches. Not only is the jurisdiction exercisable where the subordinate court has made a finding, sentence or order but goes on to state that it is also exercisable to determine the regularity of any proceedings of any such subordinate court as well."
39. The Applicant submitted therefore that this Honourable Court is possessed of the requisite jurisdiction to hear and determine the application.
III. ISSUE TWO: THE DPP'S CONSTITUTIONAL AND STATUTORY MANDATE
40. On the DPP’s powers the applicant relied on Article 157(6)(c) 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."
41. Counsel went on to cite Article 157(8) of the Constitution which further provides:
"The Director of Public Prosecutions may not discontinue a prosecution without the permission of the court."
42. The applicant also relied on Section 87(a) of the Criminal Procedure Code provides:
"In a trial before a subordinate court a public prosecutor may, with the consent of the court or on the instructions of the Director of Public Prosecutions, at any time before judgment is pronounced, withdraw from the prosecution of any person, and upon withdrawal— (a) if it is made before the accused person is called upon to make his defence, he shall be discharged, but discharge of an accused person shall not operate as a bar to subsequent proceedings against him on account of the same facts; (b) if it is made after the accused person is called upon to make his defence, he shall be acquitted."
43. The Applicant submitted that sufficient legal basis exist for the DPP to review and withdraw criminal cases, the only caveat being the requirement of the court's permission, which obliges the DPP to furnish grounds. The determinative question is whether the trial court was furnished with sound reasons warranting withdrawal. The applicant submitted that the reasons for withdrawal were sufficient.
IV. ISSUE THREE: PRINCIPLES GOVERNING WITHDRAWAL APPLICATIONS
44. Under this limb of submission, the applicant cited the case of Director of Public Prosecutions v Kiptoo & 6 others (Criminal Revision E1550 of 2024), where this court held, in guiding public prosecutors:
"I. Although the initiative emanates from the State, the Public Prosecutor who is in charge of the case shall act independently and shall not surrender his discretion to someone else.
II. The Public Prosecutor should apply his mind to the relevant materials made available to him and should satisfy himself that the facts warrant the exercise of his discretion to discontinue the prosecution.
III. The Public Prosecutor should act fairly uninfluenced by any irrelevant and extraneous considerations, and in good faith in the interest of public policy and justice but not to thwart or stifle the process of law.
IV. The Public Prosecutor must aver in his application that he is acting in good faith satisfied on consideration of all relevant material that his withdrawal from the prosecution is in the public interest and it will not stifle or thwart the process of law or cause injustice, and state briefly in the application or in an affidavit annexed to that application that the material has been considered for withdrawal; the considerations above if well taken into consideration by public prosecutors would bring about predictability and consistency in prosecutorial decision making to demystify the question of withdrawal of cases in Kenya."
The same authority, guiding trial courts, held:
"101. On the other hand, the trial courts should be guided by the following considerations in determining an application for withdrawal by the public prosecutor;- a. The opinion of the Court is no doubt supervisory but it should satisfy itself that the material perused by the Public Prosecutor should reasonably lead to the conclusion that the withdrawal of the Public Prosecutor will serve the public interest. b. In the process, the Court is not reappreciating the grounds, which led the Public Prosecutor to file an application for withdrawal. c. Both the Court as well as the Public Prosecutor are duty bound to protect the administration of criminal justice against the possible abuse or misuse of law by the executive. d. The Court cannot lightly interfere with the judgment of the Public Prosecutor unless it comes to the conclusion that he has not applied his mind as a free agent uninfluenced by irrelevant and extraneous considerations or that his decision is not bona fide. e. It is not for the Court to assess the evidence to discover whether the case would end in conviction or acquittal. All that the Court has to see is whether the application is made in good faith in the interest of public policy and justice and not to thwart or stifle the process of law. f. The Court has to satisfy itself that the executive function of the Public Prosecutor has not been improperly exercised or that it is not an attempt to interfere with the normal course of justice for illegitimate reasons or purposes. g. The consent shall not be given lightly on the mere application of the Public Prosecutor without careful and proper scrutiny of the grounds on which the application for consent is made." (Citing Public Interest Litigation by Justice P.S Narayana, Former Judge, High Court of Andhra Pradesh, and P. Jagadish Chandra Prasad, Advocate, High Court of Andhra Pradesh and High Court of Telangana, Foreword by Hon'ble Dr. Justice Motilal B. Naik, 6th Edition, pages 327–328.)
45. Building on this, the Applicant submitted that a trial court, in determining a withdrawal application, must consider whether the prosecution exercised its discretion independently and as a free agent, free of irrelevant or extraneous influence; whether the decision is bona fide and made in good faith; whether it is free of malice or improper purpose; whether it advances public interest and public policy; and whether it avoids abuse of court process.
46. The Applicant further submitted that, by virtue of Article 157 vesting independent constitutional mandate in the DPP, courts are obligated to accord due deference to prosecutorial discretion, and may only interfere upon clear demonstration — through cogent reasoning, not bare or conclusory statements — that the discretion contravenes Article 157(11).
V. ISSUE FOUR: WHETHER THE TRIAL COURT'S ORDERS WERE CORRECT, LEGAL, AND PROPER
47. The applicant in dealing with this aspect of the trial court’s decision cited the case of Prosecutor v Stephen Lesinko [2018] eKLR, where Nyakundi J outlined the principles guiding examination of issues under Section 362 of the Criminal Procedure Code:
"1. the decision is grossly erroneous; 2. Where there is no compliance with the provisions of the law; 3. Where the finding of fact affecting the decision is not based on evidence or it is result of misreading or non-reading of evidence on record; 4. Where the material evidence on the parties is not considered; 5. Where the judicial discretion is exercised arbitrarily or perversely if the lower Court ignores facts and tries the accused of lesser offence."
48. The applicant maintained that the decision by the trial court in rejecting the withdrawal application did not meet the propriety and legality test.
49. The applicant also cited Mohit v The Director of Public Prosecutions of Mauritius [2006] UKPC 20 (24 April 2006), where the Privy Council, considering reviewability of a DPP's decision to discontinue a prosecution, held:
"It may be accepted, however, that a purported exercise of power would be reviewable if it were made: i. In excess of the DPP's constitutional or statutory grants of power— such as an attempt to institute proceedings in a court established by a disciplinary law (see s 96(4)(a). ii. When, contrary to the provisions of the Constitution, the DPP could be shown to have acted under the direction or control of another person or authority and to have failed to exercise his or her own independent discretion— if the DPP were to act upon a political instruction the decision could be amenable to review. iii. In bad faith, for example, dishonesty. An example would arise if a prosecution were commenced or discontinued in consideration of the payment of a bribe. iv. In abuse of the process of the court in which it was instituted, although the proper forum for review of that action would ordinarily be the court involved. v. Where the DPP has fettered his or her discretion by a rigid policy— eg one that precludes prosecution of a specific class of offences."
50. In Republic v Njoroge & another (Criminal Appeal E002 of 2022), the court held:
"So, what do I make of this? Section 193A of the Criminal Procedure Code is specific on stay of criminal proceedings to give way to civil proceedings. It is emphatic, that criminal proceedings are not to be stayed, prohibited or delayed because of pending civil proceedings. There is no provision which says the same about civil proceedings, prohibiting stay of civil proceedings to give way to criminal proceedings. I do not read section 193A as saying that civil and criminal proceedings, on the same facts or same issues, can or should run concurrently. I understand it to be stating that where it happens that there are concurrent civil and criminal proceedings, then criminal proceedings should not be stayed because of the pending civil proceedings. 9. To my mind, section 193A bars stay of criminal proceedings, and there is an implicit suggestion that in the event of concurrent civil and criminal proceedings, it should be the civil proceedings that ought to give way. That would be logical, given that the heavier burden of proof is in criminal proceedings. There is more rigor in criminal proceedings, as a result, and the outcome of criminal proceedings should carry more weight. 10. Consequently, there is absolutely nothing wrong, with having civil proceedings stayed to await determination of pending criminal proceedings. In the instant case, the subject matter of the criminal proceedings and the civil proceed
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