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MagistrateAllowedCriminal Case (number not stated in judgment; related Civil Case ACEC 25/2016)· [2020] KEMC 3 (KLR)

Republic v Isaac (Anti-Corruption Case 9 of 2015) (Anti-Corruption and Economic Crimes) [2020] KEMC 3 (KLR)

Magistrates' Court
8 September 2020
LML.N. MUGAMBI
581 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court let the DPP withdraw criminal charges, but only after the accused showed good faith by paying part of what he owed the public.

What this practically means

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Executive summary

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The Director of Public Prosecutions applied under section 87(a) of the Criminal Procedure Code to withdraw a criminal charge against Ibrahim Haji Isaak arising from Kshs.11.5 Million belonging to Kenya Meat Commission, the same sum found payable by the accused in High Court Civil Case ACEC 25/2016 at the suit of the EACC. On an earlier mention the court, while regarding the criminal and civil processes as distinct, indicated it was willing in principle to grant the withdrawal but required demonstration of good faith by the accused, since no down payment or settlement agreement with EACC had been shown and the court would fail in its duty to protect public interest if withdrawal were allowed without such demonstration. Pursuant to that direction, the accused's advocate wrote to EACC on 30.7.2020 proposing to withdraw Civil Appeal No.232/2020 and setting out how he intended to settle the decretal amount; he paid 30% of the decretal sum, Kshs.3,450,000/=. Chief Magistrate L.N. Mugambii found that the accused had demonstrated good faith, that EACC was engaging him in the settlement process and had received the initial payment, and concurred with the DPP's request. The charge was withdrawn under section 87(a) CPC and the accused discharged. Upon application by defence counsel Ms Githongori, unopposed by the prosecution, the court also ordered refund of cash bail of Kshs.100,000/= deposited on 28.5.2015 under receipt No.0360855. No costs order was made.

Key legal issues

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Whether withdrawal of the criminal charge under section 87(a) CPC should be permitted

Holding

Withdrawal granted because the accused demonstrated good faith by paying 30% of the decretal sum (Kshs.3,450,000/=) and engaging EACC on settlement of the balance.

Reasoning

The criminal and civil processes are distinct, but the court had earlier conditioned its willingness to allow withdrawal on demonstration of good faith. The accused wrote to EACC proposing to withdraw Civil Appeal No.232/2020 and paid 30% of the decretal amount. EACC was engaging him in settlement and had received the initial payment. The court therefore concurred with the DPP's request and discharged the accused.

p. 2

Legal principles established

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  • A court may condition its acquiescence to withdrawal of charges under section 87(a) CPC on demonstration of good faith by the accused towards satisfying a related civil judgment, to protect public interest.

Court orders

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  1. 1.The charge against the accused Ibrahim Haji Isaak withdrawn under section 87(a) of the Criminal Procedure Code and the accused discharged
  2. 2.Cash bail of Kshs.100,000/= deposited via receipt No.0360855 on 28.5.2015 to be refunded to the depositor
Jurisdiction invoked
Section 87(a) of 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 Isaac (Anti-Corruption Case 9 of 2015)  (Anti-Corruption and Economic Crimes) [2020] KEMC 3 (KLR)", Case Analysis (2020). Criminal Case (number not stated in judgment; related Civil Case ACEC 25/2016). Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2020/3/eng@2020-09-08

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