Director of Public Prosecutions v Justus Mwendwa Kathenge & 2 others [2016] KECA 98 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed that prosecutors cannot charge a public officer for lawfully doing his job when a court order blocked the action.
What this practically means
#Executive summary
#Key legal issues
#Limits of prosecutorial discretion under Article 157
The D.P.P's independence does not confer unreviewable power; prosecution exercised contrary to the public interest, the administration of justice, or as abuse of process violates Article 157(11) and will be stopped
The Court traced the limits of prosecutorial power from Githunguri onwards, holding that the power must never be abused, exercised oppressively, maliciously or against the public interest, and that courts possess inherent jurisdiction to stop such prosecutions. Charging the enforcement officer who had issued a lawful demolition notice, after the Council had been restrained by court order, was scape-goating and bad faith.
Protection of public officers under Article 236
A public officer acting in good faith in the lawful performance of the functions of the office cannot be criminally charged for discharging those functions
The 1st respondent, as Enforcement Officer, had inspected the building and issued an enforcement notice under the Physical Planning Act. The Council's enforcement was stopped by a court injunction and its officers faced committal for contempt. Charging him for the collapse occurring while the injunction was in force was an abuse of process and contrary to Article 236.
Compliance with Order 40 strictures on injunctions
Trial courts must scrupulously observe the timelines and safeguards in Order 40 rule 4 and the sequence of the Giella tests when granting injunctions
The Court catalogued the six conditions introduced in Order 40 rule 4 to curb abuse of ex parte injunctions and lamented their non-observance, which left a 2009 injunction suit pending in 2011 when the building collapsed. The Court declared that lives were lost as a direct consequence of the court order.
Legal principles established
#- The exercise of prosecutorial powers under Article 157 is subject to the public interest, the interests of the administration of justice, and the need to prevent abuse of the legal process; a prosecution mounted in violation of those limits is an abuse of process and may be stopped
- Courts must adhere to the statutory strictures in Order 40 rule 4 governing ex parte and interlocutory injunctions, including the 14-day, 3-day service, 60-day hearing and 12-month lapse timelines
- Everyone subject to a court order of competent jurisdiction is under a plain and unqualified obligation to obey it unless and until it is discharged
Court orders
#- 1.Appeal dismissed with costs
- On appeal from
- High Court of Kenya at Nairobi
- Petition No. 372 of 2013
- Jurisdiction invoked
- First appellate jurisdiction under rule 29 of the Court of Appeal Rules; constitutional petition appeal
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Ngethe v Ethics and Anti-Corruption Commission & another (Civil Appeal E006 of 2020) [2026] KECA 979 (KLR)[2026] KECA 979 (KLR)15 May 2026followed
Cite this brief
#Cite this brief
Caselaw, "Director of Public Prosecutions v Justus Mwendwa Kathenge & 2 others [2016] KECA 98 (KLR)", Case Analysis (2016). Civil Appeal No. 201 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2016/98/eng@2016-11-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.