Mwau v Republic [1984] KECA 35 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed that a magistrate must accept a nolle prosequi without questioning it, and the AG can delegate that power.
What this practically means
#Executive summary
#Key legal issues
#Interpretation of section 26(6) of the Constitution and delegation of the nolle prosequi power
The purpose of section 26(6) is to prevent future legislation conferring the nolle prosequi power on any other person or authority, not to require the Attorney-General to exercise it in person; he may authorise subordinates to exercise the power
The court adopted the magistrate's interpretation that section 26 prevents legislation conferring the power on others rather than confining its exercise to the Attorney-General personally. The word 'vest' has no technical meaning; the Attorney-General may authorise subordinates to exercise the power, though the court doubted he could vest it in them. It was unnecessary to decide this fully, following the High Court's decision in Mwangombe.
Mootness / absence of a live charge for constitutional reference
No reference or appeal lay because after the nolle prosequi the appellant was discharged and no charge or prejudicial order was in being
The appellant, though discharged, sought to overturn the nolle prosequi so as to face extant charges. The court held there was no charge on which he stood in jeopardy and no order to his prejudice, so no grievance requiring constitutional redress. Any submission under section 67 could be made if fresh charges were brought.
Inhuman treatment under section 74(1) of the Constitution
The mere preferring of charges cannot amount to inhuman treatment
Section 74(1) refers to treatment, physical or mental, akin to torture or destitute of natural kindness, brutal and unfeeling. The preference of charges, even if bad, did not meet that threshold in the circumstances of the case.
Competence of the second appeal
The appeal was incompetent; the only routes to the High Court were a reference or direct appeal under section 67(4), or an appeal under the Criminal Procedure Code after conviction or forfeiture
The purported appeal was not framed under section 67(4) and by the time the matter reached the High Court no proceedings existed to found a reference or appeal. The magistrate had simply acted on the nolle prosequi as he was bound to do, so there was no appealable decision.
Legal principles established
#- A magistrate has no choice but to accept a nolle prosequi signed by a person in whom the power has been vested, and cannot reject or question its validity
- The Attorney-General's discretion whether or not to enter a nolle prosequi is not subject to the control or supervision of the courts
- A reference to the High Court under section 67(1) of the Constitution requires the court to have formed the opinion that a substantial question of law is involved, and no reference or appeal lies where no proceedings are in existence to give it foundation
Court orders
#- 1.The appeal is dismissed
- On appeal from
- High Court at Nyeri
- Jurisdiction invoked
- Second appeal to the Court of Appeal under the Criminal Procedure Code (cap 75), from the High Court on appeal from the Senior Resident Magistrate, Nyeri
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mwau v Republic [1984] KECA 35 (KLR)", Case Analysis (1984). Criminal Appeal No 128 of 1983. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1984/35/eng@1984-05-26
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.