Nathaniel Jeremiah Nandwah v Director Public Prosecutions & 1 other
The bottom line
#Kenya's Court of Appeal ruled that withdrawing a criminal case doesn't stop prosecutors from filing the same charges again, and dismissed the applicant's attempt to block that.
What this practically means
#Executive summary
#Key legal issues
#Whether the intended appeal was arguable under the first limb of the Rule 5(2)(b) test
The application failed at the threshold because the applicant identified no arguable issue following the dismissal of his revision application challenging the withdrawal of the Nyahururu criminal case.
The court applied the settled test from Trust Bank Ltd v Ivestech and Kang'ethe Kinyanjui v Ketter: an applicant must first demonstrate the appeal is arguable, then that it would be rendered nugatory if interim relief is denied. The applicant merely asserted high prospects of success without identifying any ground. His contention that reinstitution of the Rumuruti case after withdrawal of the Nyahururu case violated his rights was not arguable, because a Section 87(a) discharge does not bar fresh prosecution on the same facts.
Effect of withdrawal of criminal charges under Section 87(a) of the Criminal Procedure Code
Such a withdrawal results in a discharge that does not operate as a bar to subsequent prosecution on the same facts.
The court endorsed the High Court's finding that a statutory withdrawal consented to by the court before judgment results in a discharge that does not undermine the Constitution and in fact supports access to justice. Because the discharge is not an acquittal, it leaves the prosecution free to institute fresh charges, which defeats the applicant's apprehension about re-arrest and renewed prosecution as a basis for interim relief.
Legal principles established
#- A withdrawal of a criminal case under Section 87(a) of the Criminal Procedure Code before the accused is called upon to make their defence results in a discharge which does not bar subsequent prosecution on the same facts.
- An applicant under Rule 5(2)(b) must satisfy the twin conditions - an arguable appeal and the nugatory test - sequentially, failing which the application fails.
Court orders
#- 1.The applicant's application dated 21st January 2026 (referred to in the final order as dated 26th January 2026) is dismissed in its entirety
- On appeal from
- High Court of Kenya at Nyahururu
- High Court Criminal Review Case No. HCCRREV/E112/2025
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules, 2022 (interim orders pending intended appeal from a supervisory/revision ruling under sections 362 and 365 of the Criminal Procedure Code)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Nathaniel Jeremiah Nandwah v Director Public Prosecutions & 1 other", Case Analysis (2026). Criminal Application (Rule 5(2)(b)) dated 21st January, 2026, Court of Appeal, Nakuru. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/991/eng@2026-05-22
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.