Wafula v Director of Public Prosecutions; Ethics and Anti-Corruption Commission & 2 others (Interested Parties)
The bottom line
#Supreme Court affirms DPP can charge a witness if new credible evidence emerges.
What this practically means
#The Supreme Court has confirmed that the Director of Public Prosecutions (DPP) has the power to change a witness into an accused person during an ongoing case. However, this power is not absolute. The DPP must act in good faith, rely on credible new evidence, and follow the official guidelines on charging. The court found that in this specific case, the DPP was justified because further investigations uncovered new evidence against the appellant. The court also said the trial court is the right place to decide if the charges are properly drafted.
Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether this court has jurisdiction to hear and determine the appeal
- 2.Whether the 1st respondent has the mandate to review its decision, and in particular to transpose a prosecution witness to an accused person
- 3.Whether the appellant's rights were violated
- 4.Whether the appellant is entitled to the relief sought
Key legal issues
#Whether the Supreme Court has jurisdiction under Article 163(4)(a) where the matter originated as a judicial review application but was treated as a constitutional petition by the High Court.
The Supreme Court has jurisdiction because the High Court expressly treated the matter as a constitutional petition, and both superior courts examined the scope of the DPP's mandate under Article 157 and the appellant's fundamental rights under Articles 25 and 50 of the Constitution.
The Court noted that the High Court, in paragraph 30 of its decision, resolved to treat the matter as a constitutional petition and considered the respondent's mandate under Articles 157(10) and (11). The Court of Appeal also addressed whether the respondent acted within the limits of Article 157(11). The issues raised implicate fundamental rights under Articles 25 and 50. Therefore, the appeal raises substantive questions involving the interpretation and application of the Constitution, falling within Article 163(4)(a).
Whether the ODPP has the mandate to transpose a prosecution witness to an accused person, and whether the exercise of that mandate was lawful in this case.
The ODPP has lawful discretion to convert a witness into an accused person, provided it is exercised in good faith, based on credible evidence, and in compliance with the guidelines on the decision to charge. In this case, the transposition was justified by further investigations that uncovered additional material evidence.
The Court found that the affidavit of Timothy Wahome provided a sufficient legal foundation for the change, explaining that an inadvertent omission during initial evidence collection necessitated further investigations. These investigations, conducted under section 23(3) and (4) of ACECA and section 118 of the CPC, established that the appellant had allegedly paid for fictitious claims. The Court rejected the claim of legitimate expectation, noting that the change was informed by new evidence, not a mere re-analysis of existing facts.
Whether the appellant's right to a fair trial under Article 50 of the Constitution was violated by his transposition from a prosecution witness to an accused person.
The appellant's right to a fair trial was not violated. The appellant is now an accused person, not a witness, and the main trial has not yet commenced, so there is no prejudice. The trial court is best placed to assess any evidentiary or procedural implications arising from the reclassification.
The Court noted that the ODPP filed an amended charge sheet designating the appellant as an accused person, and he had not testified before the procedural shift. Therefore, he cannot be called as a prosecution witness against his co-accused. The Court found no procedural unfairness, malice, or arbitrariness in the reclassification, and the timing was not prejudicial as the main trial is yet to commence. The Court agreed with the lower courts that this is a matter best evaluated by the trial court.
Whether the appellant was charged with a non-existent offence, warranting the quashing of the charges.
The issue of whether the charge is defective is a matter for the trial court to determine, not the Supreme Court. The Criminal Procedure Code provides well-settled provisions for dealing with defective charge sheets.
The Court agreed with the High Court and Court of Appeal that issues of competency of charge sheets are within the jurisdiction of a trial court. The Court cited its own precedent in Peter Ngoge v Francis Ole Kaparo & 5 others, emphasizing that the chain of courts has the competence to resolve technical legal complexities, and only cardinal issues of law or jurisprudential moment deserve the Supreme Court's input.
Legal principles established
#- The DPP can convert a witness into an accused person if new, credible evidence emerges.
- This discretion must be exercised in good faith and is subject to judicial review under Article 47 of the Constitution.
- Courts must weigh the fairness of the transposition against the necessity, timing, and manner of the change.
- A witness who becomes an accused person before testifying cannot be called as a prosecution witness against their co-accused.
- The Supreme Court has jurisdiction over appeals treated as constitutional petitions by the High Court.
- Challenges to the validity of a charge sheet are best handled by the trial court, not the Supreme Court.
Court orders
#- 1.The petition of appeal dated December 20, 2024 and filed on December 23, 2024 is hereby dismissed.
- 2.Each party shall bear their costs of the appeal.
- 3.We hereby direct that the security for costs deposited in the appeal be refunded to the appellant.
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Court of Appeal at Nairobi
- Civil Appeal No 264 of 2018
- Jurisdiction invoked
- Article 163(4)(a) of the Constitution
Relief refused
#Order setting aside the judgment and decree of the High Court
The Court found that the respondent and 1st interested party acted within their mandates and the appellant's rights were not violated.
Order of certiorari to quash the decision to charge the appellant
The Court found no evidence of malice or abuse of prosecutorial power.
Order of prohibition prohibiting the respondent from prosecuting the appellant
The Court found the decision to charge was legally justified based on further investigations.
Costs
Each party shall bear their costs of the appeal.
Quotable passages
#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 finding that, while the ODPP has lawful discretion to convert a witness into an accused person, such discretion must be exercised in good faith; it must be based on credible and admissible evidence; and the same must comply with the guidelines on the decision to charge, particularly the two-stage and threshold tests; and, the decision is subject to judicial review considerations under article 47 of the Constitution.
The court must therefore weigh such circumstances against the necessity, timing, and manner in which the Director of Public Prosecutions (DPP) seeks to effect the change. The overriding question is whether the action is procedurally fair, constitutionally compliant, and free from arbitrariness or abuse of court process.
The petition of appeal dated December 20, 2024 and filed on December 23, 2024 is hereby dismissed.
Each party shall bear their costs of the appeal.
We hereby direct that the security for costs deposited in the appeal be refunded to the appellant.
Key timeline
#Practical implications
#DPP's charging discretion clarified
The Supreme Court has affirmed that the DPP's power to convert a witness into an accused is lawful but strictly bounded. Lawyers can now challenge such decisions on grounds of bad faith, lack of credible evidence, or non-compliance with the ODPP's own charging guidelines. Judicial review under Article 47 is a viable avenue for clients facing such transposition.
Risk of witness-to-accused shift
Businesses and their employees cooperating with the DPP as witnesses in corruption cases should be aware that this status is not permanent. If the DPP uncovers new evidence against a witness during investigations, that person can be charged. This ruling underscores the importance of legal representation from the very start of any investigation.
Your rights as a witness in a case
If you are a witness in a criminal case, the DPP can charge you later if new evidence emerges. However, this decision must be fair and based on solid evidence. You have the right to challenge this in court. The Supreme Court confirmed that you cannot be forced to testify against yourself if your status changes from witness to accused.
Frequently asked questions
#Can the DPP in Kenya charge a witness in an ongoing case?+
Yes, the Supreme Court has confirmed the DPP has the discretion to convert a witness into an accused person. This power must be exercised in good faith, based on credible new evidence, and in line with the DPP's own charging guidelines. The decision is subject to court review.
What happens to my right to a fair trial if I am changed from a witness to an accused in Kenya?+
The Supreme Court ruled that your right to a fair trial is not automatically violated. If you haven't testified yet, you cannot be called as a witness against your co-accused. You now have the full rights of an accused person to prepare your defence. The trial court will handle any specific issues.
Can I challenge the DPP's decision to charge me in Kenya?+
Yes. The Supreme Court stated that the DPP's decision to transpose a witness to an accused is subject to judicial review under Article 47 of the Constitution (fair administrative action). You can challenge it if the decision was made in bad faith, without evidence, or arbitrarily.
What is the Benson Khwatenge Wafula v DPP case about in Kenya?+
It is a Supreme Court case where an advocate and former company secretary was initially a witness in a corruption case. The DPP later charged him based on new evidence. He challenged this, but the Supreme Court dismissed his appeal, affirming the DPP's power to do so under strict conditions of fairness and credible evidence.
Later judgments citing this (1)
#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
Cite this brief
#Cite this brief
Caselaw, "Wafula v Director of Public Prosecutions; Ethics and Anti-Corruption Commission & 2 others (Interested Parties)", Case Analysis (2025). Petition E045 of 2024. Source: https://new.kenyalaw.orghttps://new.kenyalaw.org/akn/ke/judgment/kesc/2025/46/eng@2025-07-11
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.