Director of Public Prosecutions v Bitange Ndemo
The bottom line
#Kenya's Court of Appeal confirmed that courts can stop criminal prosecutions where the DPP's decision to charge is selective, premature, or driven by improper motives.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the learned judge failed to appreciate the role of the court in judicial review proceedings and assumed the role of an investigator by evaluating the evidence intended for the criminal trial
- 2.Whether the learned judge erred in holding that the DPP had abused his constitutional and statutory mandate in preferring charges against the respondent
- 3.Whether the learned judge erred in considering extraneous and irrelevant factors, namely the competency of the prosecuting counsel and the circumstances of his appointment
Key legal issues
#Role of the court in judicial review of prosecutorial decisions
The High Court correctly stated and applied the law; it did not usurp the DPP's mandate or act as an investigator
The Court of Appeal reproduced the High Court's own statements that courts should not usurp the DPP's constitutional mandate and that judicial review concerns process, not merits, but that courts will halt proceedings constituting an abuse of process. Those excerpts showed the judge understood her role, defeating the appellant's first ground.
Abuse of the DPP's constitutional and statutory mandate
The decision to recharge the respondent was premature, selective and discriminatory, taken on incomplete investigations and without disclosure of the new evidence to the respondent, amounting to abuse of mandate
Muite SC's letters showed investigations were incomplete, charges uncertain, and a self-implicated witness was to secure conviction. The respondent was never availed the new evidence. The prosecution disregarded article 157(11) and section 4 of the ODPP Act, eroding public confidence in the DPP's office.
Relevance of the prosecuting counsel's appointment and conduct
Senior counsel's participation was not an irrelevant factor because it impacted the independence of the DPP's decision to prosecute
The intervention of Muite SC resulted in the DPP reversing his earlier decision to close the file, leading to a selective and discriminatory prosecution intended to secure a conviction at all costs. The circumstances of counsel's appointment therefore bore directly on the legality of the decision-making process.
Legal principles established
#- A court ought not to usurp the constitutional mandate of the DPP to investigate and undertake prosecutions, and judicial review is concerned with the decision-making process, not the merits
- Courts will interfere with the DPP's mandate where he acts contrary to constitutional and statutory principles, including where prosecution is selective, discriminatory or aimed at securing a conviction at all costs
- A prosecution that is selective and discriminatory, without regard to public interest and the need to avoid abuse of legal process, cannot be allowed to stand
Court orders
#- 1.Appeal dismissed in its entirety
- 2.Costs of the appeal awarded to the respondent
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
Wrote the judgment
Wrote the judgment
- On appeal from
- High Court of Kenya at Nairobi
- JR Misc Application No. 192 of 2016
- Jurisdiction invoked
- First appellate jurisdiction under the Court of Appeal Rules (rule 29 re-appraisal duty); appeal from High Court judicial review decision
Relief refused
#Allowance of the appeal with costs as urged by the appellant
All six grounds of appeal failed; the High Court correctly found abuse of the DPP's constitutional and statutory mandate
Costs
Appeal dismissed in its entirety with costs to the respondent
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
It is now established law that a courtought not to usurp the constitutional mandate of the Director of Public Prosecutions to investigate and undertake prosecutions in the exercise of the discretion conferred upon that office.
However, if the applicant demonstrates that the criminal proceedings that the Director of Public Prosecutions or the police have commenced or intend to commence against him constitute an abuse of the legal process, the court will not hesitate to put a halt to such proceeding (s) or declare the proceedings as being in breach of the law.
The decision recommending re-charging of the respondent was therefore certainly premature.
It was meant to secure a conviction at all costs rather than advance the cause of justice and such prosecution cannot be allowed to stand.
We think we have said more than enough to demonstrate why this appeal is devoid of merit. Accordingly, it is hereby dismissed in its entirety with costs to the respondent.
Issues in the judgment
#Paragraph numbering irregular - jumps from paragraph 44 to paragraph 55
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Director of Public Prosecutions v Bitange Ndemo", Case Analysis (2022). Civil Appeal 104 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/1136/eng@2022-10-21
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.