John Kinyanjui Macharia v Director of Public Prosecutions
The bottom line
#Challenging a criminal prosecution requires strong evidence; the court will not interfere with the DPP's independent mandate lightly.
What this practically means
#Executive summary
#Key legal issues
#Whether the DPP's institution of criminal proceedings amounted to abuse of the legal process under Article 157(11)
No abuse was demonstrated; the Petitioner's assertions were based on surmises and innuendo and he failed to furnish evidence that the DPP acted contrary to Article 157.
The court held that a prosecution is abusive only if instituted for a purpose other than its proper design, if it deprives the accused of a fair trial, or if it is against public policy. The Petitioner's claim that the prosecution was designed to coerce settlement of a civil dispute was unsupported by any pleading or evidence of the alleged ELC suit, and his complaints about insufficient evidence belong to the trial court.
Whether the Petitioner satisfied the principles for grant of conservatory orders
He did not; no prima facie case with likelihood of success, no real danger of prejudice, and no demonstration that the Petition would be rendered nugatory.
Applying the settled principles from CREAW, Wambora and Munya, the court found the Petitioner was essentially canvassing his defence to the criminal charges, which is the trial court's role. His asserted prejudice (damage to public image, impediment to prosecuting the ELC suit) did not amount to real, imminent danger of constitutional violation, and the public interest in prosecution outweighed halting the case.
Whether the court should resolve contested evidential matters underlying the criminal charges
No; that is the duty and responsibility of the trial court.
The court held that a judicial review or constitutional court ought not to transform itself into a trial court and examine the merits of the prosecution. The sufficiency of the evidence connecting the Petitioner to the offences is a matter for the trial court, where the Petitioner retains the full fair-trial guarantees of Article 50 and the Criminal Procedure Code.
Legal principles established
#- The independent mandate of the DPP under Article 157 of the Constitution is not to be lightly interfered with; a person alleging abuse of the prosecutorial process bears the burden of demonstrating it.
- The concurrent existence of criminal and civil proceedings arising from the same facts is not itself abuse of process unless the criminal proceedings were brought to compel submission to the civil claim.
- The mere fact that charges have been brought and the evidence may not support a conviction is not ipso facto a violation of constitutional rights.
Court orders
#- 1.The Petitioner's Notice of Motion seeking a stay of proceedings in Kiambu Criminal Case No. 889 of 2019 pending determination of the Petition was dismissed
- Jurisdiction invoked
- Constitution of Kenya, 2010 (High Court jurisdiction over alleged violation of constitutional rights; Article 157 considered)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "John Kinyanjui Macharia v Director of Public Prosecutions", Case Analysis (2020). Petition and Notice of Motion filed 18th June 2019 (number not stated in judgment). Source:
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.