Shisanya v Mwangi & 3 others (Civil Appeal E046 of 2022) [2025] KECA 2071 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed that courts cannot force the DPP to prosecute unless there is clear evidence of abuse of power.
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 appellant was accorded a fair hearing before Mativo, J.
- 2.Whether the learned Judge was at fault in failing to find that the DPP was mandated to prosecute the 1st respondent
Key legal issues
#Whether the High Court could fault the DPP's decision not to prosecute the 1st respondent
No. The trial Judge was merely recording his findings on the DPP's decision and its reasons; the DPP is independent under Article 157(10) and intervention requires demonstrated abuse of prosecutorial power, which was not shown.
Article 157(6) vests State powers of prosecution in the DPP, who under Article 157(10) requires no consent and is not under the direction or control of any person or authority. Courts may intervene only in exceptional cases of abuse of power or process. The DPP's decision was based on an investigation report which the trial court found no reason to impeach, and the appellant demonstrated no gross abuse of discretion, manifest injustice or palpable excess of authority.
Whether the appellant was denied a fair hearing before Mativo, J.
The issue was abandoned; the appellant made no submissions on it and nothing turns on it.
Although the memorandum of appeal raised grounds touching on the Judge's conduct of proceedings (muted microphone, failure to accommodate prior decisions), the appellant filed no submissions on the fair-hearing issue when the appeal came up for hearing, and the Court treated those grounds as abandoned and failing.
Status of grounds of appeal on which no submissions are made
Grounds of appeal on which no submissions are made stand abandoned.
The Court confined the appeal to two broad issues on which submissions were made and expressly held that the remaining grounds in the memorandum of appeal, though raised, were abandoned for want of submissions.
Legal principles established
#- The decision to prosecute rests exclusively with the independent DPP under Article 157(6) and (10), and a court may only direct that action be taken, not the manner in which prosecutorial discretion is exercised
- Judicial interference with prosecutorial discretion is reserved for exceptional cases of demonstrated abuse of power
Court orders
#- 1.The appeal is dismissed in its entirety
- 2.The Ruling and Orders of the High Court of Kenya at Mombasa (J. Mativo, J.) dated 9th March 2022 are upheld
- 3.Each party to bear their own costs of the appeal
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Mombasa
- Mombasa HC Petition No. 63 of 2016
- Jurisdiction invoked
- First appeal to the Court of Appeal against the ruling of the High Court (constitutional petition); no specific Article 163(4) certification invoked on the record
Relief refused
#Upholding of the earlier decisions and orders of E. K. O. Ogola, J. and faulting the DPP's decision not to prosecute the 1st respondent
The decision to prosecute is the prerogative of the independent DPP under Article 157; the appellant failed to demonstrate gross abuse of discretion, manifest injustice or palpable excess of authority
Grounds alleging breach of the right to a fair hearing
The appellant made no submissions on the alleged breach of his right to a fair hearing
Costs
Given the public nature of the petition leading to the instant appeal, we hereby order and direct each party to bear their own costs of the appeal. Orders accordingly.
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.
we reach the inescapable conclusion that the appeal fails and is hereby dismissed in its entirety. Consequently, the Ruling and Orders of the High Court of Kenya at Mombasa (J. Mativo, J.) (as he then was) dated 9th March 2022 are hereby upheld.
Given the public nature of the petition leading to the instant appeal, we hereby order and direct each party to bear their own costs of the appeal.
The decision to prosecute remained the prerogative of the DPP who, according to Article 157(10), was not subject to the direction or control of any person or authority.
The appellant did not demonstrate that the DPP acted in gross abuse of discretion, manifest injustice or palpable excess of authority to warrant intervention or directions by the learned Judge.
To our mind, the other issues raised in the appellants grounds of appeal, but on which no submissions were made, stood abandoned.
Issues in the judgment
#The judgment's citation of cases embedded in quoted passages (Jirongo, Vision 2030, Githunguri, Ndarua, Kuria, Mohit, Manning) means their treatment is recorded as within quotations rather than this court's own adoption
The transcript of Mativo, J.'s ruling contains internal inconsistencies in date references (orders dated 16.5.2019 versus 13.6.2019 as recited in the narrative) and apparent transcription gaps in the DPP's report date
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Shisanya v Mwangi & 3 others (Civil Appeal E046 of 2022) [2025] KECA 2071 (KLR)", Case Analysis (2025). Court of Appeal at Mombasa (Memorandum of Appeal dated 6th May 2022). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/2071/eng@2025-12-05
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.