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Supreme CourtDismissedPetition 39 & 40 of 2019 (Consolidated)

Saisi & 7 others v Director of Public Prosecutions & 2 others

Supreme Court of Kenya
27 January 2023
Mohammed Khadhar IbrahimM.K. IbrahimSmokin Charles WanjalaS.C. WanjalaNjoki Susanna NdunguNjoki NdunguIsaac LenaolaI. LenaolaWilliam OukoW. Ouko
13,390 words in judgment
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·~54 min to read original · ~4 min brief

The bottom line

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Supreme Court limits judicial review to uncontroverted evidence; DPP's charging decisions rarely overturned.

What this practically means

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The Supreme Court ruled that judicial review courts can only examine undisputed facts, not decide guilt or innocence. The DPP's decision to charge can only be stopped if it is an abuse of process. Accused persons must go to trial to raise their defenses. This case involved procurement charges against GDC employees; their attempt to stop the trial failed.

Executive summary

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The Supreme Court dismissed consolidated appeals by eight former employees of Geothermal Development Company (GDC) who challenged the Court of Appeal's decision to set aside High Court orders that had quashed criminal charges against them. The appellants were members of GDC's Tender Committee charged with procurement-related offences under the Anti-Corruption and Economic Crimes Act for allegedly awarding a rig move contract at Kshs 42,746,000 per move—more than double the previous year's price. The High Court (Odunga J) had granted judicial review orders quashing the charges, but the Court of Appeal reversed, holding that the High Court exceeded its jurisdiction by delving into the merits of the DPP's prosecutorial decision. The Supreme Court affirmed the Court of Appeal, making three key holdings. First, judicial review under the 2010 Constitution and the Fair Administrative Action Act permits some measure of merit analysis but only on uncontroverted evidence; it does not transform into a full appellate review, and the court cannot substitute its own decision. Second, the High Court may only interfere with the DPP's prosecutorial discretion under article 157(11) where criminal proceedings are instituted for reasons other than enforcement of criminal law or otherwise abuse of process. The appellants' contentions—whether the charges were based on non-existent law, whether the tender committee had a duty to compare market prices, and whether the 1st appellant was merely a witness—were serious issues of fact and law better suited for the trial court. Third, the claim of constitutional rights violations failed because the appellants had not demonstrated malice or discrimination, and the proper forum to raise these issues is the trial court. The Court ordered that Anti-Corruption Case No 20 of 2015 proceed on a priority basis, with each party bearing its own costs.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the character and scope of judicial review has evolved/changed post Constitution 2010? And if so, in what way?
  2. 2.Whether the Court of appeal erred in holding that the High Court exceeded its jurisdiction in interfering with the prosecutorial mandate of the DPP as set out in the Constitution
  3. 3.Whether the DPP violated the appellants’ rights and fundamental freedoms under articles 10, 25(c), 27, 28, 29, 41 and 50 of the Constitution in preferring the charges contested by the appellant?
  4. 4.Who shall bear the costs of the appeal?

Key legal issues

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01

Whether the character and scope of judicial review has evolved post-2010 Constitution

Holding

Judicial review has evolved from a purely process-based review to permit some measure of merit analysis, but only on uncontroverted evidence; it does not become a full appellate review.

Reasoning

The court examined the two schools of thought that emerged after the 2010 Constitution. It held that section 7 of the Fair Administrative Action Act requires some examination of circumstances to determine reasonableness and fairness, but this is limited to uncontroverted evidence. The court cannot substitute its own decision or conduct a full trial on disputed facts. It affirmed its earlier decisions in SGS Kenya Ltd and John Florence Maritime Services Ltd that judicial review remains concerned with the decision-making process, not the merits of the decision.

p. 24
02

Whether the Court of Appeal erred in holding that the High Court exceeded its jurisdiction in interfering with the DPP's prosecutorial mandate

Holding

The Court of Appeal did not err; the High Court exceeded its jurisdiction by delving into contested issues of fact and law that should be determined by the trial court.

Reasoning

The Supreme Court found that the appellants' contentions—whether the charges were based on non-existent law, whether the tender committee had a duty to compare market prices, and whether the 1st appellant was merely a witness—were serious issues of fact, evidence, and statutory interpretation. These are matters for the trial court to resolve through viva voce evidence and cross-examination, not for a judicial review court. The DPP's decision to charge was not shown to be an abuse of process under article 157(11).

p. 26
03

Whether the DPP violated the appellants' constitutional rights by preferring the charges

Holding

The claim of constitutional rights violations fails because the appellants have not demonstrated malice or discrimination, and the proper forum to raise these issues is the trial court.

Reasoning

The court held that the right to fair trial under article 50 is not violated merely by being charged. The appellants removed themselves from the protections of article 50(1) by refusing to submit to the trial court's jurisdiction. The criminal justice system provides adequate safeguards, and the trial court is competent to resolve the appellants' complaints during trial. Since there was nothing untoward about the charges, the claim for constitutional violations falls away.

p. 27

Legal principles established

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  • Judicial review permits limited merit analysis only on uncontroverted evidence; court cannot substitute its own decision.
  • High Court may only interfere with DPP's prosecutorial discretion under Article 157(11) if proceedings are for reasons other than enforcement of criminal law or abuse of process.
  • Claims of constitutional rights violations by being charged fail unless malice or discrimination is shown; proper forum is trial court.
  • Refusing to submit to trial court jurisdiction removes accused from protections of Article 50(1) fair trial.
  • Controverted evidence and contested interpretations of law are for trial court, not judicial review court.

Court orders

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  1. 1.The 1st appellant’s petition of appeal dated October 25, 2019 and lodged on even date and the 2nd to 8th appellants’ petition of appeal dated October 25, 2019 and lodged on October 29, 2019 are hereby dismissed.
  2. 2.Anti-Corruption Case No 20 of 2015 before the Chief Magistrates’ Court in Milimani to proceed and be heard on priority basis.
  3. 3.Each party to bear its own costs.

The bench

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One judgment of the whole court — no separate or dissenting opinions.

Mohammed Khadhar Ibrahim
majority
Smokin Charles Wanjala
S.C. WanjalaSCJ
Currently serving
majority
Njoki Susanna Ndungu
Njoki NdunguSCJ
Currently serving
majority
Isaac Lenaola
I. LenaolaSCJ
Currently serving
majority
William Ouko
W. OukoSCJ
Currently serving
majority
On appeal from
Court of Appeal at Nairobi
Civil Appeal No 2 of 2016 as consolidated with Civil Appeal No 184 of 2016 and Civil Appeal No 313 of 2017
Jurisdiction invoked
Article 163(4)(a) of the Constitution
Consolidated with
Petition 40 of 2019

Relief refused

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Setting aside the Court of Appeal judgment and reinstating the High Court judgment

The Court of Appeal did not err; the High Court exceeded its jurisdiction by delving into merits of the DPP's decision.

p. 27

Costs

Each party to bear its own costs.

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

it is our considered opinion that it should be limited to the examination of uncontroverted evidence. The controverted evidence is best addressed by the person, body or authority in charge.
p. 24 Scope of judicial review
We are emphatic that the High Court, whether sitting as a constitutional court or a judicial review, may only interfere where it is shown that under article 157(11) of the Constitution, criminal proceedings have been instituted for reasons other than enforcement of criminal law or otherwise abuse of the court process.
p. 27 Interference with DPP's prosecutorial discretion
These appear to be serious contentions of fact, evidence and interpretation of the law better suited to be examined by a trial court. Certainly, not for the High Court while exercising its judicial review jurisdiction.
p. 26 Limits of judicial review in criminal matters
The 1st appellant's petition of appeal dated October 25, 2019 and lodged on even date and the 2nd to 8th appellants' petition of appeal dated October 25, 2019 and lodged on October 29, 2019 are hereby dismissed.
p. 28 Final orders - dismissal of appeals
Anti-Corruption Case No 20 of 2015 before the Chief Magistrates' Court in Milimani to proceed and be heard on priority basis.
p. 28 Final orders - trial to proceed
Each party to bear its own costs.
p. 28 Costs order

Key timeline

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2015
Criminal charges filed against GDC employees in Milimani Chief Magistrates Court.
Prior to October 2019
Court of Appeal reverses High Court's quashing of charges.
2019-10-25
Appellants lodge petitions of appeal to Supreme Court.
2023
Supreme Court dismisses appeals, affirms Court of Appeal.

Practical implications

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For lawyers

Judicial review scope clarified

When challenging DPP decisions, focus on abuse of process, not merits. Use only uncontroverted evidence. Avoid arguing contested facts or law; those belong in trial. This ruling reinforces that judicial review is not a substitute for trial.

For businesses

Procurement charges must go to trial

If your employees face procurement charges, judicial review is unlikely to stop the trial unless clear abuse of process is shown. Prepare for trial and ensure legal representation. The court will not second-guess the DPP's decision based on disputed facts.

For individuals

Charges don't violate rights automatically

Being charged is not a constitutional rights violation. You must go to trial to defend yourself. Refusing to submit to trial removes your fair trial protections. If you believe charges are malicious, raise that in trial court, not through judicial review.

Frequently asked questions

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Can judicial review stop criminal charges in Kenya?+

Only if the charges are an abuse of process, such as being brought for reasons other than enforcing criminal law. The court cannot stop charges based on disputed facts or legal arguments; those must be resolved at trial.

What is the scope of judicial review under the 2010 Constitution in Kenya?+

Judicial review now allows limited examination of uncontroverted evidence to assess reasonableness and fairness, but it does not become a full appeal. The court cannot substitute its own decision on the merits.

Can the DPP's decision to charge be challenged in Kenya?+

Yes, but only under Article 157(11) if the decision is an abuse of process or for ulterior motives. The High Court cannot interfere based on contested facts or interpretations of law; those are for the trial court.

Does being charged violate my constitutional rights in Kenya?+

No. The right to a fair trial under Article 50 is not violated merely by being charged. You must submit to the trial court to raise defenses. Refusing to do so removes you from the protections of Article 50(1).

Later judgments citing this (25)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Saisi & 7 others v Director of Public Prosecutions & 2 others", Case Analysis (2023). Petition 39 & 40 of 2019 (Consolidated). Source: https://new.kenyalaw.orghttps://new.kenyalaw.org/akn/ke/judgment/kesc/2023/6/eng@2023-01-27

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