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High CourtAllowedCriminal Appeals No. 60, 61, 62, 63, 64, 65, 66 of 2017· [2020] KEHC 2171 (KLR)

Republic v Nathif Jama Adan & 6 Others

High Court of Kenya
28 October 2020
CKC. Kariuki
3,572 words in judgment
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·~14 min to read original · ~4 min brief

The bottom line

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The prosecution has a constitutional right to withdraw charges, and courts cannot block this power based on potential future harm to the accused.

What this practically means

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Executive summary

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The respondents were charged in Garissa Chief Magistrate's Court EACC No. 1 of 2016 under the Anti-Corruption and Economic Crimes Act with offences relating to a Kshs 62,400,000 ambulance services contract between the County Government of Garissa and Red Cross E-plus. After eleven prosecution witnesses testified, the prosecution applied under section 87(a) of the Criminal Procedure Code to withdraw the charges, citing the Court of Appeal decision in Engineer Michael Sistu Kamau vs EACC, which held that investigations and prosecution recommendations by the EACC while improperly constituted (12th May 2015 to 22nd January 2016) were tainted with illegality. Chief Magistrate Cosmas Maundu refused consent to withdrawal on 8th November 2017, noting the case was at an advanced stage, the evidence weak and likely to end at no case to answer, and that re-arrest on the same evidence would be unfair; he instead acquitted the respondents under section 210 of the CPC. The DPP appealed on four grounds, arguing the magistrate usurped the prosecution's constitutional powers. C. Kariuki J applied Republic v Leonard Date Sekento, Kacem v Bashir and Mbogo v Shah, holding that the trial magistrate exercised his discretion injudiciously by failing to consider whether the prosecution acted improperly or arbitrarily, and that prejudice from possible fresh charges is immaterial. The appeal was allowed: the acquittal under section 210 was set aside, the charges were withdrawn under section 87(a), and the respondents stand discharged.

Key legal issues

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01

Whether the trial court could refuse consent to withdrawal under section 87(a) CPC on grounds of prejudice to the accused

Holding

The High Court held that the trial magistrate exercised his discretion injudiciously; prejudice from possible fresh charges is immaterial and the court should not curtail the DPP's constitutional power of withdrawal.

Reasoning

Relying on Republic v Leonard Date Sekento, the court held that the DPP's independence under Article 157 is protected, and a court may only refuse consent where the prosecution acts improperly, beyond its powers, or arbitrarily. The trial court failed to consider these factors and wrongly treated the likelihood of re-opening the case as a bar to withdrawal.

p. 4
02

Whether the acquittal under section 210 CPC could stand

Holding

The acquittal was set aside and the charges withdrawn under section 87(a), with the respondents discharged.

Reasoning

Having found the refusal of withdrawal injudicious, the court concluded there was nothing to warrant disallowing the withdrawal, allowed the appeal, and set aside the acquittal, substituting a discharge under section 87(a) which does not bar subsequent proceedings on the same facts.

p. 4

Legal principles established

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  • Section 87(a) of the CPC gives the subordinate court discretion to accept or refuse an application by the prosecution to withdraw a case, and withdrawal requires the consent of the court.
  • An appellate court should not interfere with the exercise of discretion of another court unless it is satisfied the discretion was misdirected, resulting in a wrong decision or injustice.
  • The likelihood that the accused would suffer prejudice if fresh charges are filed is immaterial to a court's decision on consent to withdrawal under section 87(a).

Court orders

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  1. 1.The order of acquittal by the trial court under section 210 of the CPC is set aside
  2. 2.The charges in the subordinate court are withdrawn under Section 87(a) CPC and the respondents stand discharged

Authorities

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Legislation

  • Anti-Corruption and Economic Crimes ActNo. 3 of 2003
  • Criminal Procedure Codesection 87(a)
  • Criminal Procedure Codesection 210
  • Constitution of KenyaArticle 157(1), (6), (8), (11)
  • Constitution of KenyaArticle 50(1)(e), 50(2)(e)

Cases cited (11)

  • Engineer Michael Sistu Kamau vs Ethics & Anti-Corruption & 4 others
    Civil Appeal No. 102 of 2016

    Investigations and prosecution recommendations by EACC while improperly constituted are tainted with illegality.

  • Republic vs Leonard Sekento
    (2019) eKLR

    Court should not deny prosecutor the right to withdraw a case merely on ground of prejudice to the accused.

  • Director of Public Prosecutions vs Perry Mansukh Kansagara and 8 Others
    (2020) eKLR

    Acquittal under section 210 prematurely closing prosecution case usurps constitutional powers of the Prosecution.

  • Sally Tuwei vs Republic
    (2019) eKLR

    Trial court's judicious refusal of withdrawal should not be interfered with.

  • Republic vs Baraka Masudi & 2 others
    (2018) eKLR
  • Republic vs George Kariuki Gichuki & 2 others
    (2015) eKLR

    Right to fair hearing under Article 50(2)(e) - trial begin and conclude without unreasonable delay.

  • Mary Wangari Mwangi vs Attorney General
    (2010) eKLR
  • Kennedy vs Kennedy Onsarigo Sebe & 3 others
    (2019) eKLR
  • Titus Koome Kubai & 2 others vs Director of Public Prosecution
    (2015) eKLR
  • Kacem v. Bashir
    (2010) NZSC 112; (2011) 2 NZLR 1

    Criteria for appeal against a decision made in the exercise of discretion.

  • Mbogo v Shah
    [1968] EA 93

    Appellate court should not interfere with discretion unless misdirection or clear wrong resulting in injustice.

On appeal from
Chief Magistrate's Court at Garissa
Garissa ACC No. 1 of 2016 (Republic vs Nathif Jama & 6 others)
Jurisdiction invoked
First appellate jurisdiction over subordinate court criminal matters under the Criminal Procedure Code

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, "Republic v Nathif Jama Adan & 6 Others", Case Analysis (2020). Criminal Appeals No. 60, 61, 62, 63, 64, 65, 66 of 2017. Source:

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