Republic v Ondiek & 2 others (Criminal Case E2049 of 2024) [2025] KEMC 341 (KLR)
The bottom line
#A Kenyan court allowed a shooting victim to withdraw his complaint and acquitted the accused, but refused to stop the related charges against two other officers.
What this practically means
#Executive summary
#Key legal issues
#Whether the attempted murder charge could be withdrawn under section 204 CPC
Yes; the complainant withdrew voluntarily and unequivocally, and the court permitted the withdrawal and acquitted the 1st Accused
The court noted that the complainant is a police officer who suffered personal physical pain, was acting on his own free will and unequivocally sought withdrawal, fully understanding the consequences. Relying on Ondieki v ODPP, the court held he should exercise his section 204 right without unnecessary bureaucracy, promoting ADR under Article 159(2). The offence being between colleagues, not civilians, was not treated as a public-interest case.
Whether the conspiracy to defeat justice charges against the 2nd and 3rd Accused could likewise be withdrawn
No; the complainant in those charges is the State, and the victim cannot withdraw them
The court distinguished the first count from counts 2 and 3. The conspiracy charges arose from allegedly misleading statements given to IPOA investigators, and the direct complainant is the State, not the shooting victim. Citing Roy Richard Elirema & another v Republic, the court held that in criminal prosecutions the complainant is the Republic; the victim is merely the chief witness. Hearing was therefore to proceed against the 2nd and 3rd Accused.
Whether the matter was suitable for alternative dispute resolution
Yes, as regards the first count; the matter fell within matters resolvable out of court as it is not a capital offence
The court found the matter squarely within the ambit of ADR because it is not a capital offence. It considered that the parties were adult officers from the same station, friends and colleagues in an operation, and that no civilian was involved, so it could not be said to be a public interest case. However, ADR was to be applied on a case-to-case basis, and the court had to be convinced the decision was made in good faith.
Legal principles established
#- A complainant may withdraw a complaint under section 204 CPC before a final order, and the court may thereupon acquit the accused, but only in respect of charges in which he is a direct complainant; in other charges the complainant is the Republic
Court orders
#- 1.Permitted withdrawal of the complaint under section 204 of the Criminal Procedure Code in respect of the first count only
- 2.Acquitted the 1st Accused of Attempted Murder c/s 220(a) of the Penal Code
- 3.Directed that hearing shall proceed against the 2nd and 3rd Accused persons on their respective counts
- 4.Ordered that the cash bail paid for the 1st Accused be released to the depositor
- Jurisdiction invoked
- Criminal Procedure Code, ss. 204 and 176; Penal Code ss. 220(a) and 117(a); Article 159(2) of the Constitution
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Republic v Ondiek & 2 others (Criminal Case E2049 of 2024) [2025] KEMC 341 (KLR)", Case Analysis (2025). Not stated in the judgment (criminal case, Nakuru). Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2025/341/eng@2025-10-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.