Martin Maina v Ashraf Savani & 5 others [2019] KECA 669 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed that private prosecutions fail unless you have a personal stake, a properly signed charge, and proof police have refused to act.
What this practically means
#Executive summary
#Key legal issues
#Locus standi of an advocate to institute a private prosecution
An advocate engaged by a client in a property transaction has no personal locus standi to prosecute by private prosecution where the client made no complaint and the advocate suffered no personal injury or damage
The court noted the complaint related to a transaction in which the appellant acted as advocate, that the client made no complaint and had died, and that the appellant presented the complaint on his own behalf. The Otieno Clifford Richard safeguards require personal injury or damage and good faith; none was shown, and the police and DPP were actively investigating, so the private prosecution was premature.
Validity of the complaint and charge before issuance of warrants of arrest
The private prosecution was fatally defective because the charge sheet was unsigned and the magistrate never signed or received the complaint as required by section 89(3) and (4) of the Criminal Procedure Code, vitiating the warrants issued
Section 89 requires a complaint, whether oral or written, to be signed by the complainant and the magistrate, and requires the magistrate to draw up and sign a formal charge unless presented by a police officer. The appellant's attached charge sheet was unsigned and the magistrate did not sign it, so the warrants issued for non-existent, defective charges.
Prematurity of private prosecution while police investigations are ongoing
A private prosecution is premature where the police and the DPP have received the complaint, are conducting ongoing investigations and the DPP is yet to make a decision
Police Constable Ogutu's uncontroverted affidavit established that inquiry files were open, investigations were complex and ongoing, and the DPP would make an appropriate decision on completion. The Otieno principles require that state prosecutorial agencies have declined to prosecute or acted with culpable inertia; ongoing investigations negate that precondition.
Legal principles established
#- Leave to institute a private prosecution may only be granted where the intended prosecutor has reported to the police and/or Attorney General, given them reasonable opportunity to prosecute, and shown that they declined or acted with culpable inertia, mala fides, and that he has a prima facie case and personal injury or damage, free of malice or ulterior motive
- A complaint initiating a criminal prosecution must be signed by the complainant and the magistrate, and a formal charge must be drawn up and signed, per section 89 of the Criminal Procedure Code; warrants of arrest cannot lawfully issue on unsigned charges
Court orders
#- 1.The appeal is dismissed
- 2.Each party to bear their own costs
- On appeal from
- High Court of Kenya at Nairobi
- Misc. Application No. 289 of 2011
- Jurisdiction invoked
- First appeal to the Court of Appeal from the High Court in judicial review proceedings (Constitution of Kenya, Article 164; Court of Appeal Act)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Martin Maina v Ashraf Savani & 5 others [2019] KECA 669 (KLR)", Case Analysis (2019). Civil Appeal No. 109 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/669/eng@2019-04-05
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.