Director of Public Prosecutions v Chapia & another (Anti-Corruption Case E041 of 2020) (Anti-Corruption and Economic Crimes) [2024] KEMC 46 (KLR)
The bottom line
#A Kenyan anti-corruption court barred EACC from actively participating in a corruption trial and refused the DPP's request to abandon the prosecution.
What this practically means
#Executive summary
#Key legal issues
#Whether EACC has locus standi as a 'victim' or 'victim representative' in corruption and economic crime prosecutions
EACC lacks locus standi for active participation; it is an investigative agency whose mandate ends at recommending prosecution to the DPP, and it cannot fit within the definitions of 'victim' or 'victim representative' under the VPA as construed in the Waswa case
The court audited the constitutional and legislative framework: Article 79 and the EACC Act confine EACC to investigation and recommendation (sections 11(d) and 35 of the EACC Act; sections 2, 23 and 35 of ACECA). The VPA confines victim status and representation to persons who suffered injury, loss or damage and their designated representatives. In corruption cases the direct victims are the people of Kenya, and no law expressly confers on EACC the function of victim representative. Permitting it would arrogate power contrary to Article 2(2).
Whether the DPP's application to withdraw under section 87(a) of the CPC met the Article 157(11) threshold
The application failed; the reasons advanced (a pending request for review and anticipated further investigations) were premature, speculative and incapable of disaffirming the tests that informed the decision to charge
Article 157(8) makes court permission a precondition and Article 157(11) sets an objective test requiring precise, tangible, cogent, compelling and verifiable considerations. The application rested on the Accused's request for review rather than new evidence emerging from the anticipated investigations, condemning the court to speculation. Further investigations can run parallel to trial; withdrawal is not a condition precedent for them. The court therefore declined the invitation.
Whether the DPP has exclusive and independent prosecutorial power including the power to discontinue, free of investigator influence
Yes; the DPP exercises independent discretion under Article 157(6) and (10), is not bound by EACC's recommendations, and the withdrawal power is not predicated on the consent of the victim
Relying on the Saisi, Dande, Sang, Elirema, Makura and Waswa authorities, the court held the DPP's independence is constitutionally safeguarded, the decision to prosecute is discretionary and quasi-judicial, and the victim has no active role in the decision to prosecute. However, independence does not shield the discontinuation decision from court scrutiny under Article 157(8) and (11).
Whether EACC may retain a watching brief in the criminal proceedings
Yes; the passive right of participation by watching brief was found sustainable and protected as an appendage of the open court doctrine under Article 50(1)
The court distinguished watching brief (passive, no right of audience) from victim participation (active, with audience). Finding no law depriving an interested person of passive participation, and rooting the practice in the non-derogable right to fair hearing and the doctrine of open court, the court directed that EACC counsel's watching brief be sustained and protected.
Legal principles established
#- In criminal proceedings, only the Accused, the DPP, and a victim or victim representative enjoy locus standi; any other interested party enjoys only passive participation by way of watching brief
- A public office may exercise only powers expressly conferred by the Constitution or statute; arrogation of power is ultra vires
- The DPP's power to discontinue a prosecution is subject to the permission of the Court, tested against public interest, the interests of the administration of justice and the need to avoid abuse of the legal process under Article 157(11)
- The DPP is not bound to prosecute merely because an investigative agency recommends prosecution; the decision to prosecute is discretionary
Court orders
#- 1.Declared that EACC lacks locus standi to actively participate in and enjoy the right of audience in criminal proceedings involving corruption and/or economic crime, in the capacity of either a 'victim' or a 'victim representative'
- 2.Declared that the right to watching brief by Counsel instructed by EACC will continue
- 3.Declined to grant the DPP's Application to withdraw from prosecuting the Accused under section 87(a) of the CPC
- 4.Granted each party (the Applicant, the 1st Respondent and the 2nd Respondent) leave to either lodge an appeal or seek judicial review or revision remedies, lasting for 30 days from the date of the Ruling
- Jurisdiction invoked
- Section 8 of the Magistrates' Courts Act, 2015, under authority donated by Article 23(2) of the Constitution, limited to rights under Article 25(a)&(b)
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (2)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Republic v Obado & 17 others (Anti-Corruption and Economic Crimes Case E018 of 2020) [2026] KEMC 96 (KLR)[2026] KEMC 96 (KLR)15 May 2026
- Republic v Obado & 17 others (Anti-Corruption and Economic Crimes Case E018 of 2020) [2026] KEMC 96 (KLR)[2026] KEMC 96 (KLR)15 May 2026distinguished
Cite this brief
#Cite this brief
Caselaw, "Director of Public Prosecutions v Chapia & another (Anti-Corruption Case E041 of 2020) (Anti-Corruption and Economic Crimes) [2024] KEMC 46 (KLR)", Case Analysis (2024). Anti-Corruption Case Number E041 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2024/46/eng@2024-11-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.