Republic v Mackenzie & 30 others (Criminal Appeal E029 of 2024) [2025] KECA 665 (KLR)
The bottom line
#The Court of Appeal allowed the Shakahola murder trial to proceed with all 191 counts against Paul Makenzie and 30 others, reversing an order to cut them to 12.
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 applied the wrong tests or principles in faulting the joinder of the 191 counts in the information
- 2.whether the learned Judge's decision contravened the DPP's constitutional mandate and the provisions of the CPC on joinder of counts
Key legal issues
#Whether the 191-count information was overloaded and the joinder improper
The Court of Appeal held the trial judge applied the wrong tests; the cited authorities (Peter Ochieng, Novac, Eliphaz Riungu) involved multiple distinct offences and transactions, unlike this case of a single murder offence founded on one set of facts (an alleged suicide pact), so the 191 counts were properly joined under section 135(1) of the CPC.
The precedents relied on involved multiple offences, multiple transactions, numerous co-accused and evidential burdens creating complexity and prejudice. Here the 31 accused face one offence of murder founded on the same facts, with substantially identical evidence across counts; the perceived length of trial does not of itself justify severance. Joint trial is preferable absent demonstrated prejudice or embarrassment to the defence.
Whether the trial judge's direction to reduce counts to a maximum of 12 violated the DPP's constitutional mandate
This ground failed. The DPP's powers are not absolute; the High Court has supervisory jurisdiction under Article 165 to ensure the DPP has regard to Article 157(11). The trial judge properly exercised her discretion, which is challengeable only on established grounds such as acting outside legal authority or being plainly wrong.
While the DPP is an independent constitutional office, prosecutorial discretion is subject to the constitutional imperatives of fair trial and administration of justice. A discretionary decision may only be disturbed where the judge acted outside her authority, ignored relevant factors, considered irrelevant ones, or was plainly wrong - none of which was demonstrated here.
Test for interference with judicial discretion
A discretionary decision can only be challenged on grounds that the judge acted outside legal authority, failed to consider relevant factors, considered irrelevant factors, reached a demonstrably unreasonable or irrational decision, abused discretion for improper purpose, or followed improper procedure - in essence, where it was plainly wrong.
Adopting the Supreme Court's guidance in Joseph Lendrix Waswa v Republic, discretionary pronouncements form an integral part of a court's jurisdiction and should not be interfered with unless the appellate court is satisfied the exercise was improper, that the judge misdirected herself and was clearly wrong, resulting in injustice.
Legal principles established
#- There is no statutory maximum number of counts that may be joined in one charge sheet; whether counts are overloaded is a matter of the trial court's discretion in the peculiar circumstances of each case, and a joint trial is preferable unless prejudice or embarrassment to the accused is shown.
- The length of a trial cannot, of itself, be the sole reason for severance of counts or offences.
- Where no legal provision dictates a particular course of action, a trial judge properly exercises judicial discretion, and an appellate court will not interfere unless the judge acted outside legal authority, misdirected herself, or the decision was plainly wrong.
- The DPP's prosecutorial powers under Article 157 are not absolute and are subject to judicial supervision under Article 165 to ensure regard to public interest, the interests of the administration of justice and the prevention of abuse of the legal process.
Court orders
#- 1.The impugned part of the Ruling and Orders of the High Court of Kenya at Malindi (M. Thande, J.) dated 17th May 2024 directing the DPP to reduce the counts in the charge sheet to no more than 12 is set aside
- 2.Appeal allowed
- 3.Recommendation to the Hon. the Chief Justice that a Judge of the High Court be appointed to hear the case on a day-to-day basis until final determination
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Malindi
- Criminal Case (murder charges, Shakahola)
- Jurisdiction invoked
- First appellate/appellant's appeal against interlocutory ruling of the High Court in a criminal trial; court's supervisory framework discussed under Articles 157 and 165 of the Constitution
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.
Consequently, the impugned part of the Ruling and Orders of the High Court of Kenya at Malindi (M. Thande, J.) dated 17th May 2024 directing the DPP to reduce the counts in the charge sheet to no more than 12 is hereby set aside. Orders accordingly.
From the afore-cited authorities, it is safe to conclude that a joint trial is preferable unless it can be shown that a joint trial would be prejudicial or embarrassing to the accused person or persons.
However, the length of a trial cannot, of itself, be the sole reason for severance of counts or ofiences, unless justice demands directions to that end.
Simply put, there is no hard rule that mandates joinder or severance of charges or of ofienders in any particular case.
the learned Judge properly invoked her autonomy and exercised her discretionary powers in discharge of her judicial duty over a matter which neither the Constitution nor statute law or the rules of procedure in criminal cases dictate any particular course of action.
if this power and discretion is exercised in such a manner as to result in overloading of a charge sheet to the prejudice of the accused, it would be subject to challenge and intervention by the courts.
Issues in the judgment
#The judgment inconsistently renders the respondents' counsel firm as 'M/s. Muoko & Company' and 'M/s. Mouko & Company'.
The case number of the appeal is not stated in the body of the judgment; only the coram and delivery details appear.
The decision whether the trial court's direction on count reduction was within judicial discretion (ground 2 upheld in the trial court's favour) sits uneasily with the setting aside of that same direction (ground 1), though the court treats the two as severable issues.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Republic v Mackenzie & 30 others (Criminal Appeal E029 of 2024) [2025] KECA 665 (KLR)", Case Analysis (2025). Criminal Appeal (Court of Appeal, Mombasa). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/665/eng@2025-04-11
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.