Director of Public Prosecutions v Attorney General & 12 others
The bottom line
#Kenya's Court of Appeal dismissed the DPP's appeal, ruling that police requisitions against Standard Chartered directors were invalid and the DPP lacked a proper basis to reopen the case.
What this practically means
#Executive summary
#Key legal issues
#Liability of directors for offences predating their appointment
Directors in office bear responsibility for the company's acts including past acts; the finding does not impute criminal culpability on the 2nd to 10th respondents
Applying Salomon and Gikonyo J's restatement, a company is a juristic person operating through its board; directors in office assume responsibility for past, present and future acts. The Court declined to disturb the trial court's finding, noting that otherwise law enforcement would have no recourse against criminal activity by companies, while cautioning that the finding imputes no guilt.
Validity of the requisitions to compel attendance
The requisitions were invalid: they cited section 283 (stealing by agents) rather than section 282 (stealing by directors), there was no complaint by SCB against its directors, and adequate notice and disclosure were absent
The requisition specified stealing by directors contrary to section 283, which does not create that offence. The offence under section 282 requires a complaint by the company, which was absent. Section 4(3)(a) of the Fair Administrative Action Act requires adequate notice and full disclosure of the nature and reasons for an inquiry, which was not met.
Legitimacy of the DPP's review of the decision not to prosecute
Although the DPP has power to review and reopen matters, the exercise here was not legitimate as there was no new evidence and the process was not independently actuated
The power to review is conditional on public interest, new material not available after due diligence, absence of malice, and non-capricious exercise. The Attorney General had previously concluded the matter was civil; without basis or new evidence the DPP started the review. The letter of 7 April 2014 was an administrative action properly quashed.
Whether the High Court decision reviewed the judgment of Mumbi Ngugi, J.
The two decisions are distinguishable in foundation and effect; the impugned decision neither reviewed nor appealed the Mumbi Ngugi judgment
The earlier decision concerned the letter closing investigations; the impugned decision concerned requisitions following the directive to reopen. The 2nd to 10th respondents were not parties to the earlier suit, the courts enjoy concurrent jurisdiction, and neither decision bound the other.
Prematurity arguments
Neither the judicial review proceedings nor the question whether a decision to prosecute had been made rendered the matter premature
The grievance challenged the process resulting in the requisitions, actuated by the DPP's letter of 7 April 2014, not a prosecution. Equally, whether a decision to prosecute had been made was premature since no respondent had been charged or set to be arraigned.
Costs in public interest litigation
No order as to costs; costs are discretionary and genuine public interest litigation should not be burdened with costs
The trial judge declined costs; the Court would only interfere if that discretion was capricious. Citing the Kenya Human Rights Commission case, it noted that condemning unsuccessful parties to costs deters litigation defending the Bill of Rights and the Constitution.
Legal principles established
#- A director in office becomes responsible for the acts of the company, past, present and future; liability for company offences does not depend on having been in office when the alleged acts occurred
- A police requisition under section 52 of the NPS Act must disclose an offence known in law and meet fair administrative action requirements of adequate notice and full disclosure
- The DPP's power to review and reopen a criminal matter is conditional on public interest, new evidence availed without malice, and an exercise of power that is not unreasonable, unfair or capricious
- An administrative action such as a DPP letter directing reopening of investigations is challengeable by judicial review before any prosecution or decision to prosecute is made
- In genuine public interest litigation costs should ordinarily not be awarded, as condemning an unsuccessful party to costs would deter suits defending the Bill of Rights
Court orders
#- 1.The appeal is disallowed
- 2.No order as to costs
- On appeal from
- High Court of Kenya at Nairobi
- Miscellaneous Civil Application No. 381 of 2014
- Jurisdiction invoked
- Appellate jurisdiction of the Court of Appeal (appeal from High Court judicial review decision); underlying powers under Article 157 of the Constitution and judicial review under Article 165(6), Law Reform Act and Order 53 of the Civil Procedure Rules
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.
- Muli & another v South Eastern Kenya University & 2 others (Civil Appeal 455 of 2018) [2024] KECA 1597 (KLR)[2024] KECA 1597 (KLR)8 Nov 2024applied
Cite this brief
#Cite this brief
Caselaw, "Director of Public Prosecutions v Attorney General & 12 others", Case Analysis (2022). Civil Appeal 206 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/397/eng@2022-03-04
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.