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MagistrateDismissedCriminal Case No E013 of 2022· [2022] KEMC 24 (KLR)

Director of Public Prosecutions v Mwalimu (Criminal Case E013 of 2022) [2022] KEMC 24 (KLR)

Senior Resident Magistrate's Court, Kwale
31 March 2022
KZKiongo Kagenyo Zacharia
2,282 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kwale court refused to let prosecutors drop a defilement case simply because the two families had reached a private settlement.

What this practically means

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Executive summary

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The accused faced a main charge of defilement contrary to section 8(1) as read with section 8(4) of the Sexual Offences Act, and an alternative charge of committing an indecent act with a child, both arising from alleged acts against a girl said to be 16 years old. Three prosecution witnesses testified, including the victim and a doctor who produced an age assessment report (P. Exh 1) indicating an age of 19 years. The DPP, through Mr. Mulama PPC, then applied under section 87(a) of the Criminal Procedure Code and section 25(2) of the ODPP Act to withdraw the prosecution, arguing the complainant was now 18 or older, that she had a second child with the accused, and that the two families had agreed the accused's family would cater for the victim and her children. The accused did not oppose. The court held that withdrawal under section 87(a), read with Article 157(6)(c) and section 25(1) of the ODPP Act, requires the leave of the court, whose role is to guard against abuse of process. It declined to assess, at an interlocutory stage, the veracity of evidence the DPP itself had adduced, holding that the DPP cannot produce evidence and simultaneously invite the court to discount it. The family settlement was found repugnant to justice, morality and Article 157(11), constituting abuse of the legal process; a child born of the alleged offence cannot be used to secure the perpetrator's escape. Further, it was not demonstrated that the Director would take over the matter. The application was disallowed and the matter ordered to proceed to full trial.

Key legal issues

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01

Court's consent requirement for withdrawal of prosecution

Holding

Withdrawal under section 87(a) CPC and section 25(1) ODPP Act requires the permission of the court, consistent with Article 157(8) of the Constitution

Reasoning

The court read section 87(a) CPC against Article 157(8), noting the footnote's 1984 delegation of DPP powers is obsolete. Section 25(1) of the ODPP Act expressly permits discontinuation only 'with the permission of the court'. Court involvement guards its processes from abuse and ensures fair administration of justice.

p. 3
02

DPP challenging its own evidence at interlocutory stage

Holding

The DPP cannot rely on the age assessment it produced yet invite the court to find it substandard before the close of the prosecution case

Reasoning

The DPP adduced viva voce evidence, the clinic card and the age assessment. The complainant's age is one of three elements of the offence. Assessing that evidence at the interlocutory stage would pre-empt the court's mind; the DPP cannot 'bring evidence on record using the left hand and by the right hand seem to expunge or challenge it'.

p. 3
03

Effect of family settlement on prosecution for defilement

Holding

Settlement talks between the families occasioned by the criminal case constitute abuse of the legal process and cannot justify withdrawal

Reasoning

While Article 159(2)(c) favours alternative dispute resolution, such mechanisms must not contravene the Bill of Rights or be repugnant to justice and morality. Defilement offends the special constitutional protection of children; a child born of the alleged defilement cannot be used as a 'pawn' or 'free pass'. The truce disregards Article 157(11).

p. 4
04

Application under section 25(2) ODPP Act

Holding

Disallowed because it was not demonstrated that the Director would be taking over the proceedings

Reasoning

Section 25(2) operates to stay trial proceedings pending withdrawal and taking over by the Director. The court found no demonstration that the Director intended to take up the matter, so the application fails on that basis as well.

p. 5

Legal principles established

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  • Discontinuation of a criminal prosecution under section 87(a) CPC / Article 157(6)(c) requires leave of the court
  • Once the prosecution adduces evidence, its veracity and probative value are for the court, not for the DPP to challenge at an interlocutory stage
  • Family settlements or truces cannot be used to sanctify or extinguish prosecution for defilement of a child

Court orders

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  1. 1.The DPP's application for withdrawal/discontinuation of the prosecution is disallowed
  2. 2.The matter shall proceed to full trial

Authorities

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Legislation

  • Sexual Offences Act No. 3 of 2006section 8(1) as read with section 8(4); section 11(1)
  • Criminal Procedure Codesection 87(a)
  • Office of the Director of Public Prosecutions Actsections 25(1) and 25(2)
  • Constitution of KenyaArticles 157(6)(c), 157(8), 157(11), 159(2)(c)
Jurisdiction invoked
Section 87(a) of the Criminal Procedure Code; Section 25(1) and 25(2) of the ODPP Act; Articles 157(6)(c), 157(8) and 157(11) 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, "Director of Public Prosecutions v Mwalimu (Criminal Case E013 of 2022) [2022] KEMC 24 (KLR)", Case Analysis (2022). Criminal Case No E013 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2022/24/eng@2022-03-31

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