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ELRCDismissedApplication dated 5 October 2018 (High Court Miscellaneous Criminal Application; related to Criminal Case No. 1636 of 2017 and Misc. Criminal Application No. 15 of 2017)· [2019] KEELRC 2565 (KLR)

Zakayo Henry Angoyia v Officer Commanding Station,Turbo & 2 others [2019] KEELRC 2565 (KLR)

High Court of Kenya
20 February 2019
2,108 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The High Court dismissed an attempt to stop a criminal prosecution, confirming that once the DPP charges you, the case must proceed to trial.

What this practically means

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Executive summary

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The Applicant moved the High Court at Eldoret by an application dated 5 October 2018, premised on Articles 22, 29(a) and (b), 31(b) and 50 of the Constitution, seeking termination of Criminal Case No. 1636 of 2017 before the Chief Magistrate's Court at Eldoret and restoration of goods seized when police raided his cinema hall at Mwambo Trading Centre in January 2017 (a TV, DVD player, and 32 discs). He complained that the OCS, Turbo Police Station, incarcerated him between 16 and 18 April 2017 despite a court order, that the lower court file went missing, and that the State refused to furnish witness statements. The State, through CI Joshua Arende's replying affidavit, opposed the application as an abuse of process, noting a similar application had been dismissed on 11 April 2017 and that the seized items were intended as exhibits in the pending criminal case. Olga Sewe, J framed the matter as a process issue rather than a true rights petition: whether the remedies sought were available. Noting that possession of bhang is an offence under Section 3 of the NDPS Act, and that the DPP enjoys independence under Articles 157(6) and 157(10), the Court held that where a decision to prosecute has been made, the process must be left to run its course, with the trial court determining the merits. The Applicant's two authorities were distinguished as pre-2010 decisions on different facts. The application was dismissed and the parties directed to pursue the lower court case to its logical conclusion.

Key legal issues

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01

Availability of the remedy of terminating a pending criminal prosecution via a constitutional application

Holding

The remedy is not available on the material presented; the prosecution was mounted on justifiable cause (possession of bhang) and the case is pending before the lower court

Reasoning

The Court framed the matter as a process issue rather than a petition for infringement of freedom, security or privacy. It found the State's explanation plausible: the Applicant was found in possession of bhang, an offence under Section 3 of the NDPS Act. The IG has investigative autonomy under Article 245(4) and the DPP prosecutorial independence under Article 157(6) and (10). Where a decision to prosecute has been made, the process must be left to run its course and the trial court determines whether the charges have any basis.

p. 2
02

Whether the applicant's cited authorities supported termination

Holding

They were distinguishable and pre-2010; even where a violation is found, it does not necessarily nullify criminal proceedings

Reasoning

The Lisambu case concerned detention beyond the statutory period before arraignment, and Gitau concerned failure to provide an interpreter and to inform the appellant of the right to recall witnesses after amendment of the charge - issues not present here. The Court further noted both decisions predated the 2010 Constitution and that the constitutional terrain has since changed, such that a violation does not automatically nullify criminal proceedings.

p. 3

Legal principles established

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  • The police need only establish reasonable suspicion before preferring charges; the High Court will be reluctant to intervene where the decision to charge was made reasonably
  • The DPP enjoys decisional independence under Article 157(10) and requires no consent to commence criminal proceedings
  • A court should not stop a prosecution save in the most exceptional circumstances

Court orders

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  1. 1.Dismissed the application dated 5 October 2018
  2. 2.Directed the parties to pursue the lower court case (Criminal Case No. 1636 of 2017) to its logical conclusion
Jurisdiction invoked
Articles 22, 29(a) and (b), 31(b) and 50(e) of the Constitution

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Zakayo Henry Angoyia v Officer Commanding Station,Turbo & 2 others [2019] KEELRC 2565 (KLR)", Case Analysis (2019). Application dated 5 October 2018 (High Court Miscellaneous Criminal Application; related to Criminal Case No. 1636 of 2017 and Misc. Criminal Application No. 15 of 2017). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/2565/eng@2019-02-20

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.