Communications Commission of Kenya v Office of the Director of Public Prosecutions & another [2018] KECA 631 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed that the DPP can independently decide not to prosecute, and complainants cannot force prosecutions through court.
What this practically means
#Executive summary
#Key legal issues
#Whether the DPP acted ultra vires in directing the Director of Criminal Investigations to close the investigation file
The DPP acted within his powers; the power to direct the Inspector-General to investigate under Article 157(4) and section 5(1) of the ODPP Act encompasses forming an independent opinion on the sufficiency of evidence and directing closure of the file.
Article 157(10) makes the DPP independent, subject only to the Constitution. Section 5(1) of the ODPP Act expressly empowers the DPP to direct the Inspector-General, under whose office the DCI falls, to investigate. Having reviewed the file and formed an independent opinion that there was no sufficient evidence, the DPP's direction to close the file was not an unlawful interference with the independence of the Inspector-General under Article 245(4). The first ground of appeal therefore failed.
The applicable test in a decision to prosecute or not to prosecute
The correct test is the Two-Stage Test under the National Prosecution Policy: the Evidential Test (realistic prospect of conviction) must be satisfied before the Public Interest Test is considered. The DPP applied the right test.
The National Prosecution Policy provides that the decision to prosecute comprises the Evidential Test and the Public Interest Test, and where the case does not pass the Evidential Test it must not go ahead no matter how serious it may be. The DPP was satisfied the evidential threshold had not been met. Although the policy standard is less than beyond reasonable doubt, a considered conclusion that the threshold was not realized cannot be equated with application of a judicial standard of proof.
Whether the DPP's decision was a fundamental error of law, unreasonable or irrational
No; the decision was amenable to judicial review but was not shown to be outside the constitutional remit of the DPP's office.
The court agreed with the learned judge that DPP decisions are amenable to judicial review on the grounds of illegality, irrationality and procedural impropriety, and where exercised unconstitutionally the court can intervene. But on the facts, having resolved the ultra vires and applicable test grounds against the appellant, there was no basis to find a fundamental error of law, unreasonableness or irrationality.
Whether the DPP breached the appellant's legitimate expectation
No legitimate expectation of prosecution arises from a complainant's investigations and recommendations; the DPP's discretion under the Constitution and statute is not displaced by the DCI's opinion.
The court endorsed Odunga, J.'s holding that the DPP is not bound to prosecute simply because the DCI has formed an opinion that a prosecution ought to be undertaken, since public interest must be considered. While a complainant ordinarily expects prosecution based on evidence gathered, the DPP's exercise of his constitutional discretion cannot breach a complainant's legitimate expectation where he chooses not to institute criminal proceedings.
Legal principles established
#- The decision whether or not to institute criminal proceedings is purely discretionary and must be exercised with regard to public interest, the interests of the administration of justice and the need to prevent and avoid abuse of the legal process.
- Where the DPP has reviewed the available evidence and concluded that the Evidential Test threshold has not been realized, he cannot be accused of applying the judicial standard of proof, even though the evidential standard under the National Prosecution Policy is less than beyond reasonable doubt.
- The DPP is not bound to prosecute simply because the Directorate of Criminal Investigations has formed an opinion that a prosecution ought to be undertaken, and a complainant has no legitimate expectation that all investigated complaints must lead to prosecution.
- A decision not to prosecute is reviewable only on grounds such as non-compliance with the Constitution or law, departure from settled policy, or perversity/unreasonableness that no reasonable prosecutor could have reached.
Court orders
#- 1.Appeal dismissed in its entirety
- 2.Each party bears their own costs
- On appeal from
- High Court of Kenya at Nairobi
- Misc. Civil Application No. 221 of 2013
- Jurisdiction invoked
- First appellate jurisdiction under Article 164 of the Constitution of Kenya, 2010, on appeal from the High Court's judgment in judicial review proceedings
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.
- DMN & another v Super Metro Company Limited & 10 others[2025] KEHC 56 (KLR)15 Jan 2025
Cite this brief
#Cite this brief
Caselaw, "Communications Commission of Kenya v Office of the Director of Public Prosecutions & another [2018] KECA 631 (KLR)", Case Analysis (2018). Civil Appeal No. 370 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2018/631/eng@2018-05-04
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.