Omollo v Republic

3. Pending hearing and determination of the criminal revision application, and in exercise of powers under Article 165(6) and (7) of the Constitution and section 362 of the Criminal Procedure Code, the court le and all records of proceedings in the Milimani Magistrate’s Court Anti-Corruption Criminal Case No. 10 of 2018, be forthwith transmitted to the Honourable Court. 4. Revisionary orders be issued to quash and set aside the Ruling and orders of Hon. E. Nyutu, SPM, made on 25th August 2023 in Milimani Magistrate’s Court Anti-Corruption Case No. 10 of 2018. 5. Revisionary orders be issued granting the Director of Public Prosecutions permission and/or consent to discontinue the prosecution of Lillian Mbogo-Omollo in Milimani Magistrate’s Court Anti-Corruption Case No. 10 of 2018. 6. Revisionary orders be issued prohibiting the Magistrate’s Anti- Corruption Court at Milimani from taking cognisance of, entertaining, hearing, conducting, proceeding with and/or determining any criminal charges against Lillian Mbogo-Omollo in Anti-Corruption Case No. 10 of 2018 or any other proceedings in variation, substitution, subtraction, addition, akin to or identical thereto as against Lillian Mbogo-Omollo. 3. The application was premised on grounds on the face of it and an adavit sworn by the appellant on 30th August 2023. It was deposed that in May 2018, the appellant was arrested and charged with multiple counts of alleged oences arising from settlement of various pending bills which were claimed by suppliers of the National Youth Service (NYS) and were settled in the nancial years 2015-2016 and 2016-2017. The appellant initially took plea before one trial court but the cases were subsequently fragmented into ten separate cases on the basis of payment made to each of the ten accused suppliers. Following an application by the appellant to the High Court seeking consolidation of the cases into one, the High Court directed the DPP and the trial courts to consolidate the cases. The criminal proceedings were subsequently consolidated to three (3) cases namely, Nairobi Chief Magistrate’s Court Anti-Corruption Criminal Case No. 8 of 2018; Nairobi Chief Magistrate’s Court Anti-Corruption Criminal Case No. 10 of 2018; Nairobi Chief Magistrate’s Court Anti-Corruption Criminal Case No. 11 of 2018. 4. In September 2020, the appellant lodged a request to the DPP seeking review of the decision to charge her in the said cases. The request was lodged pursuant to the provisions of Articles 157(6)(c) and 157(11) of the Constitution, sections 4 and 5 of the Office of the Director of Public Prosecutions Act, 2013 (ODPP Act) and the National Prosecution Policy. 5. The DPP exercised his power under section 5(4)(e) of the ODPP Act and reviewed the decision to charge the appellant in the aforesaid cases. The DPP then, in exercise of powers under Article 157(6)(c) of the Constitution as read with Article 157(11), determined to discontinue the criminal proceedings against the appellant and lodged applications before the respective trial courts seeking permission to do so. The trial court in ACC No. 8 of 2018, vide a ruling dated and delivered on 4th July 2023 allowed the DPP’s application and permitted the withdrawal. Similarly, in ACC No. 11 of 2018, the court vide a ruling dated and delivered on 17th July 2023, allowed withdrawal of the criminal charges against the appellant. The trial court in ACC No. 10 of 2018, however, declined to grant permission for the DPP to discontinue the criminal proceedings vide its ruling dated and delivered on 25th August 2023. The appellant was aggrieved by that decision arguing that the ndings and orders owing therefrom were manifestly incorrect, illegal, improper and irregular, particulars of which, in summary, are that; https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1723/eng@2026-09-25 2

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a. The trial court descended into the arena of litigation by advancing unpleaded and speculative grounds for opposing the DPP’s application. b. Parties before the trial court were not given an opportunity to respond to the reasons advanced by the court for declining the application. c. The court was materially inuenced by an error of law by detouring into matters which fall outside its jurisdiction. d. The trial court acted without jurisdiction in purporting to interpret the question of whether the DPP’s exercise of its powers to discontinue the criminal proceedings against the appellant is consistent with Articles 157(11) of the Constitution. e. The court failed to take into account relevant considerations namely that in the exercise of his powers under Article 157(6)(c) of the Constitution, the DPP duly took into account the relevant considerations enumerated in Article 157(11). f. The court grossly misapplied and misinterpreted the scope of powers of the DPP under Articles 157(6)(c) and 157(11) of the Constitution. g. The court failed to judiciously exercise its discretionary power under section 87(a) of the Criminal Procedure Code by taking account of extraneous. h. The court failed to take into account relevant considerations namely the National Prosecution Policy which provides that the evidential test must pass muster before considering public interest in relation to a decision to maintain any criminal charges against an accused. i. The court acted disproportionately by failing to appreciate that public interest considerations do not override the applicant’s absolute right to fair trial. j. The court in elevating public interest over and above the evidentiary test and the applicant’s right to fair trial, failed to take account of and give eect to binding decisions of the High Court. k. The court purported that the adavit evidence which cited the reasons for discontinuing criminal charges against the appellant amounted to usurping the judicial powers of the trial court. l. The court purported that no evidence was placed before the court whereas evidence in the form of Adavit evidence, sworn by Evah Kanyuira was placed before the court. m. The court imputed a nding of guilt against the appellant because criminal proceedings against her had been pending in court for a period of over 5 years and because she had already been charged. n. Similar application for discontinuation of similar charges against the appellant had already been allowed by trial courts in ACC. No. 8 of 2018 and ACC No. 11 of 2018. 6. Ultimately the appellant prayed that pursuant to the High Court’s jurisdiction conferred by Article 165(6) and (7) of the Constitution and section 362 of the CPC, the court ought to call for and examine the record of the criminal proceedings and the impugned decision in ACC No. 10 of 2018 and grant revisionary orders. 7. The respondent answered the application through ‘Grounds of No Contest’ dated 11th September 2023, asserting that it would not contest the application to have the ruling of the learned Magistrate https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1723/eng@2026-09-25 3

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reviewed and replaced with an order allowing the withdrawal application. It was urged that the DPP had exercised his power under section 5(4)(e) of the ODPP Act and reviewed the decision to charge the appellant; the National Prosecution Policy mandates the DPP to continually review the decision to charge once prosecutions are commenced; the DPP reviewed the decision to charge the appellant based on the evidential test and established, inter alia that; a. The alleged procurement process involving the concerned payments was concluded before the appellant was appointed to the oce of Principal Secretary State Department of Public Service and Youth. b. There were numerous pending bills in NYS dating back to the nancial year 2013/2014 which were incurred before her appointment to the State Department of Public Service and Youth. c. She appointed the rst verication committee to ensure that only payable pending bills were recommended for payment. d. None of the persons appointed exclusively by the appellant in the 1st verication committee was charged in the on-going cases. e. The appellant did not appoint subsequent pending bills verication committee. f. None of the documents questioned in the on-going prosecution such as the payment vouchers, S13, S11, LPOs, LSOs and other accountable documents were presented to the appellant for her approval and she in fact did not approve the accountable documents. g. The appellant as principal secretary was not the AIE holder responsible for approving accountable documents such as payment vouchers, S13, S11, LPOs, LSOs and other accountable documents presented before the courts. h. It was not within the appellant’s scope of work to receive and approve the accountable documents which are questioned in the cases. i. None of the witnesses has given any evidence that directly or indirectly incriminates the appellant. 8. The respondent went on to state that, review of the decision to charge the appellant based on the evidential test started in 2021 and the DPP in exercise of the powers under Article 157(6)(c) of the Constitution as read with Article 157(11), made a decision to discontinue the criminal proceedings against the appellant; and, as such the charges against the appellant ought to be withdrawn under section 87(a) of the CPC. It was asserted that, the learned Magistrate was not clothed with jurisdiction to return a nding of ‘discriminatory withdrawal’ as that was a breach of Article 157(8) as read with section 8 of the Magistrates Court Act. Further, it was urged that she relied on irrelevant facts in arriving at that, allegedly, erroneous and incorrect decision; and, she exceeded her power in assuming that on an application for discontinuation of prosecution the court has a carte blanche power to review the decision of the DPP. The learned Magistrate was faulted for relying on evidence taken during the hearing of the case instead of focusing on the germane application. It was contended that the impugned ruling oended the existing jurisprudence on applications for discontinuation of prosecution and that the learned Magistrate failed to consider the facts pleaded and the relevant law. 9. The revision application was canvassed before Sifuna, J. by way of written submissions. However, since the respondent had conceded, the court directed that it was not necessary for it to le submissions. At the end of the hearing the learned Judge found that there was no illegality, incorrectness, irregularity or impropriety in the refusal by the learned Magistrate to allow the prosecution to withdraw the charges against the appellant. In the result, he dismissed the application. https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1723/eng@2026-09-25 4

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10. Aggrieved by that decision, the appellant preferred the instant appeal, based on 9 grounds, which in summary, are that the learned Judge erred by; 1. Failing to appreciate that under the National Prosecution Policy, the ODPP Guidelines on Decision to Charge, section 5(4)(e) of the Oce of Director of Public Prosecutions Act and Article 157(6)(c) of the Constitution, the Director of Public Prosecutions possesses the statutory and constitutional discretion to initiate and terminate criminal proceedings. 2. Failing to appreciate that review of evidence in proceedings is a continuous process under the ODPP guidelines. 3. Misapplying Article 157 of the Constitution. 4. Failing to appreciate that the prosecution of the appellant was not in the public interest. 5. Failing to appreciate that the charges against the appellant in ACC No.8 of 2018, ACC No. 10 of 2018 and ACC No. 11 of 2018 are all strikingly similar. 6. Imputing guilt against the appellant in gross contravention of section 87(a) of the CPC and the appellant’s absolute right to fair trial. 7. Failing to appreciate the length and breadth of the criminal revision jurisdiction of the High Court under sections 362 and 364 of the CPC. 8. Failing to appreciate the length and breadth of the supervisory jurisdiction of the High Court under Articles 165(6) and (7) of the Constitution. 11. The appellant prayed that the impugned ruling be set aside and substituted with an order allowing withdrawal of the charges by the DPP as per prayers 4,5 and 6 of the application dated 30th August 2023. 12. During the hearing of the appeal, learned counsel Mr. Okongo Omogeni, SC, Mr. Ian Wambua and Mr. Justus Omollo appeared for the appellant while the respondent was represented by Mr. O. J. Omondi, the learned Senior Assistant Director of Public Prosecutions. Counsel briey highlighted written submissions which they had led earlier. Mr. O.J. Omondi indicated that they had led a crossappeal on behalf of the respondent. Although we see no cross-appeal on record, we take cognisance of his submission that the grounds of the cross-appeal are similar to those contained in the appellant’s memorandum of appeal. 13. Counsel on both sides drew our attention to a consent dated 13th June 2024, by which the respondent conceded the appeal, and which they urged us to adopt. However, in view of the fact that the consent is not binding upon the Court and considering the High Court’s strong views on the question of the powers of the DPP to withdraw or terminate criminal proceedings or charges, we directed the parties to fully address us on the appeal. 14. For the appellant, it was submitted that Article 157(6)(c) of the Constitution arms the DPP’s independence to discontinue at any stage, before judgment is delivered, any criminal proceedings. Further, Article 157(11) mandates it to exercise this independence in accordance with public interest, the administration of justice and the need to prevent an abuse of court process. The Supreme Court decision in Joseph Lendrix Waswa Vs. Republic [2020] eKLR was cited for the argument that the DPP is not under the direction or control of any person or authority. Counsel also referred to Republic Vs. Director Of Public Prosecutions Ex Parte Meridian Medical Centre Ltd & 7 Others, Petition No. 363 of 2013 for the argument that the DPP should exercise his mandate and discretionary power to https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1723/eng@2026-09-25 5

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prosecute within constitutional limits and the independence of his oce. Mr. Omogeni, SC contended that no evidence was led before both the trial court and the High Court to suggest and/or prove that the decision of the DPP to discontinue charges against the Appellant was not made in public interest, according to fair administration of justice or in abuse of court process. He submitted that section 5(4)(e) of the ODPP Act, 2013, gives the DPP the mandate to review a decision to prosecute or not prosecute any criminal oence. Further, he submitted that the National Prosecution Policy reiterates the same mandate at clause 1.5(e) and at clause 4.1(e), listing the role of a prosecutor as reviewing, including the decision to charge. Clause 5 mandates the Prosecutor to continually review prosecutions once commenced, where there is a change of circumstances which indicates that the evidence is no longer sucient to justify a reasonable prospect of conviction or when it is no longer in the interest of justice for the prosecution to continue. Reference was made to guideline 4.6.2 of the Guidelines on the Decision to Charge, 2019, which provides that a decision to charge must be kept under regular review. 15. Counsel contended that had the court below applied the principles established under Article 157(11), it would have appreciated that the respondent’s decision was in public interest as it saved time and public resources that would go into attempting to prove a case without any evidence. The decision would also ensure fair administration of justice by protecting the appellant, who the DPP believed to be innocent, from the unnecessary cost, mental anguish and nancial crippling that is characteristic of criminal litigation; and, it would prevent abuse of the court process. Counsel pointed out that while section 87(a) of the CPC appears to permit a public prosecutor to withdraw criminal proceedings against an accused person, with the consent of the court or, on the instructions of the DPP, Article 157(8) of the Constitution provides that the DPP may not discontinue a prosecution without the permission of the court. Citing section 7(1) of the Sixth Schedule to the Constitution, it was urged that when section 87(a) of the CPC is construed to bring it into conformity with Article 157(8), the upshot would be that criminal prosecution of an accused person may only be discontinued with the ‘permission’ or ‘consent’ of the court, a position that is echoed in section 25(1) of the ODPP Act. 16. Mr. Omogeni, SC submitted that nothing in section 25(1) of the ODPP Act, section 87 of the CPC and Article 157(8) of the Constitution stipulates the grounds upon which the DPP may bring an application to discontinue criminal prosecution. He urged that section 87 of the CPC as regards consent of the court in withdrawal from prosecution is in pari materia with the provisions of section 321 of Indian Code of Criminal Procedure which states that, ‘The Public Prosecutor or Assistant Public Prosecutor in charge of a case may, with the consent of the court, at any time before the judgment is pronounced, withdraw from the prosecution of any person either generally or in respect of any one or more of the oences for which he is tried.’ It was urged that the trial court and the High Court gravely erred in law by failing to appreciate and give eect to prosecutorial discretion on withdrawal of charges as conferred by statute and the Constitution for reasons that; a. Whereas section 87 of the CPC, section 25(1) of the ODPP Act and Article 157(6)(c) of Constitution mandates the DPP to discontinue any criminal proceedings, the learned Judge gravely erred in law when he held that the DPP is bound by the decision to charge hence cannot discontinue the criminal prosecution of the Appellant. b. Whereas section 87 of the CPC, section 25(1) of the ODPP Act and Article 157(6)(c) of Constitution mandates the Court to grant “consent” and/or “permission” to the DPP to withdraw charges against an accused which consent is to be granted in exercise of supervisory power, the learned Judge grossly erred in law when he held that the consent should be an exercise of an adjudicatory process following “diligent judicious scrutiny”. c. Whereas the learned Judge held that revision jurisdiction should be exercised objectively, measuredly, judiciously and sparingly in a manner that does not amount to micromanaging https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1723/eng@2026-09-25 6

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the proceedings in courts below, he immediately embarked on a frolic of unhinged attacks against the exercise of prosecutorial discretion by the DPP labelling the DPP’s application for withdrawal of charges against the appellant as a “choreographed” “excision for abandonment” and “sharp practice”. d. Whereas section 87 of the CPC is patently silent on grounds upon which the DPP should seek to discontinue criminal proceedings against an accused, the learned Judge grossly misconstrued the grounds in the DPP’s Application dated 14th June 2023 as a “mutinous change of roles” and “excess and usurpation of a judicial function” by the DPP. 17. On the strength of the Supreme Court of India’s decision in Sheo Nandan Paswan Vs. State Of Bihar, (1987) (1) SCC 288: (AIR 1987 SC 877: 1987 Cri LJ 793), it was submitted that on an application by the DPP to grant consent or permission to withdraw an accused person from prosecution, the mandate exercised by the court is supervisory as opposed to adjudicatory. Further, the court's duty is not to reappreciate the grounds which led the DPP to request withdrawal from the prosecution but to consider whether the DPP applied his independent mind and was uninuenced by irrelevant and extraneous considerations. To counsel, the DPP demonstrated independent exercise of mind in determining to discontinue the prosecution of the appellant, as shown by the depositions contained in the Adavit sworn on 14th June 2023, by Evah Kanyuira, a Senior Principal Prosecution Counsel. Counsel contended that the said depositions were not controverted by any party before the trial court or the High Court. 18. Mr. Omogeni, SC, urged that the ground of paucity of evidence, advanced by the DPP as a basis for the application to discontinue charges against the appellant, was a valid ground according to the decision in Sheo Nandan Paswan (supra). The learned Judge was faulted for construing that ground as ‘mutinous change of roles’ and as an ‘excess and usurpation of a judicial function’. He was castigated for considering extraneous factors in determining the application, factors that would contravene the appellant’s right to a fair trial. It was asserted that consideration of extraneous factors in an application for withdrawal of charges, was disapproved by majority of the judges in the Sheo Nandan Paswan case (supra). Counsel contended that in view of the fact that the trial courts in ACC. No. 8 of 2018 and ACC. No. 11 of 2018 granted consent for withdrawal of charges against the appellant, it would be egregious to subject the appellant to criminal prosecution on the same charges for which other courts of concurrent jurisdiction have already consented to being withdrawn. Further, it was urged that it would be inimical to the proper administration of justice for the appellant to be subjected to trial where the DPP has admitted that the evidence in his possession overwhelmingly exonerates her from the charges pending before the trial court. To fortify this argument, reliance was placed on the decision of the Supreme Court of India in the case of State Of Orissa Vs. Chandrika Mohapatra & Ors., [1977] 1 SCR 335, where the court upheld a consent to withdraw charges while stating that, ‘compelling the state to go on with the prosecution in these circumstances would involve unnecessary expenditure and waste of public time, which could otherwise be protably utilized for other judicial work.’ In the end counsel urged that the appeal and the cross-appeal dated 10th April 2024 be allowed. 19. In support of the appeal, Mr. O. J. Omondi submitted that the DPP’s exercise of discretion under Article 157(6) is not subject to control by any individual. The learned Judge was faulted for holding that once the decision to charge has been made, it cannot be reviewed, when the reasons for the DPP’s decision to discontinue prosecution were given in the adavit by the Prosecution Counsel. It was argued that the learned Judge ventured into extraneous issues instead of considering the reasons which were given in the adavit. Counsel contended that where a new fact emerges which shows that the accused person was innocent, even though a decision to charge had been made, the DPP’s exercise of powers under section 87 of the CPC goes a long way in avoiding abuse of the court process. Referring https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1723/eng@2026-09-25 7

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to Article 157(8) of the Constitution, which provides that the DPP may not discontinue prosecution without the permission of the court, counsel urged that the use of the word ‘may’ in the provision as opposed to ‘shall’ is an indication that the court’s refusal to grant permission should be made only in exceptional circumstances and only if it is proven that the reasons for withdrawing charges are unconstitutional. 20. It was submitted that although the enactment and operation of section 87(a) of the CPC is antecedent to Article 157 of the Constitution, it is wholly in accord with it and has been in use in numerous cases in ensuring that there is no abuse of the court process. 21. Counsel urged that in considering applications under section 87(a) of the CPC or under Article 157 of the Constitution, it is not open for the trial court to examine the nature of the charges, their ramications or the evidence which may already be on record or anticipated to be brought on record. Further, it was submitted that it is not open to the trial court to weigh upon the suciency of the evidence or whether there is a prima facie case or not. Mr. O. J. Omondi contended that a trial court ought to restrict itself to the contents of the application vis-vis the provisions of section 87(a) of the CPC and check whether the application is within the DPP’s statutory and constitutional mandate. 22. Reference was made to the decision in Kajiado HC Criminal Revision No. 1 of 2018 where it was observed that section 87 of the CPC is meant to advance the administration of criminal justice and not to frustrate it, and observed that, the requirement for the court’s sanction under section 87 (a) of the CPC when an accused person is already charged with the oence is a formal way to inform the court and seek consent to take further directions on the case. We were urged to make a determination that settles the interpretation of Article 157 of the Constitution vis-à-vis section 87(a) of the CPC. While doing so, we were invited to take into account the decision in Sheo Nandan Paswan (supra). In conclusion, the respondent implored us to allow the cross- appeal in its entirety and order that the decision of the learned Judge delivered on 7th February 2024, be varied, reversed and set aside substituting it with an order allowing the withdrawal of the charges as applied for in the trial court under section 87(a) of the CPC. 23. We inquired from Mr. O. J. Omondi whether the consent that is required to be obtained from court before discontinuing prosecution is supposed to be granted as a matter of course. Counsel’s response was that indeed that was their position; that the application for consent from the court is simply meant to make the court aware that the prosecution has reviewed the case and wishes to withdraw the charges. 24. In a brief reply Mr. Omogeni, SC expressed the hope that this judgment will settle the question of the DPP’s constitutional discretion to discontinue a prosecution. Counsel urged that the discretion of DPP to review a decision to charge subsists so long as the matter has not been heard and determined by the court. He posed these questions: What if the DPP said he had no evidence to present before the court, what would be the purpose of allowing the prosecution to continue? What evidence will the court be relying on to proceed with the charges? 25. Mr. Omollo, with our leave, also added his voice to the appellant’s case submitting that the basis of seeking consent to discontinue prosecution is founded on the National Prosecution Policy, clause 4.0(e). Citing the decision in Sheo Nandan Paswan (supra), he argued that when considering whether to grant consent, the court performs a supervisory function as opposed to an adjudicatory function, in the sense that at that point it is not the court's duty to reappreciate the grounds which led the DPP to request a withdrawal from prosecution; the court is supposed to consider whether the DPP applied his mind independently, without being inuenced by irrelevant or extraneous considerations. https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1723/eng@2026-09-25 8

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26. Having carefully considered the submissions made before us, we decipher that the central issue for our consideration is whether the learned Judge exercised his discretion judiciously in declining to allow the application for revision. 27. It is trite that when a court is called upon to exercise its discretion, it ought to do so judiciously. That is because discretional power is derived from the law and must be exercised upon certain legal principles and according to the circumstances of each case, to the end of doing substantive justice to the parties. See Patriotic Guards Ltd Vs. James Kipchirchir Sambu [2018] eKLR. We are cognisant of the fact that this Court can only interfere with the judicial discretion of the learned Judge if satised that he misapprehended the facts; or misdirected himself on the law; or that he took into account matters of which he should not have; or failed to take into account considerations which he should have; or that his decision was plainly wrong. See Shah Vs. Mbogo & Another [1967] EA 1116. 28. Both parties fault the learned Judge for failing to appreciate the DPP’s statutory and constitutional discretion to initiate and terminate criminal proceedings, in refusing to allow withdrawal of charges against the appellant. The relevant constitutional and statutory provisions that confer upon the DPP the prosecutorial discretion to discontinue and/or withdraw charges against an accused person are as set out below; Article 157(6)(c) of the Constitution states; “The Director of Public Prosecutions shall exercise State powers of prosecution and may – […] subject to clause (7) and (8), discontinue at any stage before judgment is delivered any criminal proceedings instituted by the Director of Public Prosecutions or taken over by the Director of Public Prosecutions under paragraph (b).” 29. Section 5(4)(e) of the ODPP Act provides that; “ The Director shall – […] review a decision to prosecute, or not to prosecute, any criminal oence.” 30. Section 87(a) of the CPC states; “ In a trial before a subordinate court a public prosecutor may, with the consent of the court or on the instructions of the Director of Public Prosecutions, at any time before judgment is pronounced, withdraw from the prosecution of any person, and upon withdrawal- if it is made before the accused person is called upon to make his defence, he shall be discharged, but discharge of an accused person shall not operate as a bar to subsequent proceedings against him on account of the same facts.” 31. It is urged by counsel that in an application by the DPP for the court to grant consent or permission to withdraw an accused person from prosecution, the mandate exercised by the court is supervisory as opposed to adjudicatory. Further, the court's duty is not to re-examine the grounds which led the DPP to request withdrawal from the prosecution, but to consider whether he applied his independent mind uninuenced by irrelevant or extraneous considerations. Counsel contend that the DPP demonstrated that he applied his independent mind in making the decision to discontinue the prosecution of the appellant, as shown by the depositions made in an Adavit sworn on 14th June 2023, by Evah Kanyuira, a Senior Principal Prosecution Counsel. We note that at paragraph eight (8) of that Adavit the said Prosecution Counsel avers that; https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1723/eng@2026-09-25 9

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32. “a) The alleged procurement process involving the concerned payments was concluded before the 1st accused [Appellant] was appointed to the Oce of Principal Secretary State Department of Public Service and Youth. b. There were numerous pending bills in NYS dating back to nancial year 2013/2014 which were incurred before her appointment to the State Department of Public Service and Youth. c. She appointed the rst verication committee to ensure that only payable pending bills were recommended for payment. d. None of the persons appointed exclusively by the 1st accused [Appellant] in the 1st verication committee was charged in the ongoing cases. e. The 1st accused [Appellant] did not appoint subsequent pending bills verication committee. f. None of the documents questioned in the ongoing prosecution such as the payment vouchers, S13, S11, LPOs, LSOs and other accountable documents were presented to the 1st accused person [Appellant] for her approval and she, in fact, did not approve the accountable documents. g. The 1st accused [Appellant] as a Principal Secretary was not the AIE holder responsible for approving accountable documents such as payment vouchers, S13, S11, LPOs, LSOs and other accountable documents presented before the courts. h. It was not within the 1st accused person’s [Appellant] scope of work to receive and approve the accountable documents which are questioned in the ongoing cases. i. None of the witnesses has given any evidence that directly or indirectly incriminates the 1st accused person [Appellant].” The grounds upon which the DPP may bring an application to discontinue criminal prosecution are not prescribed in any law. We were urged by counsel to set benchmarks of what the trial court should take into consideration, while exercising its discretion in an application for withdrawal of charges or discontinuation of prosecution. The Supreme Court of India’s decision in Sheo Nandan Paswan Vs. State Of Bihar, (1987) (1) SCC 288: (AIR 1987 SC 877: 1987 Cri LJ 793), was cited as a reference point of the principles that the court ought to bear in mind. In that decision, the court interpreted section 321 of the Indian Code of Criminal Procedure, which provision is similar to section 87(a) of the CPC in terms of the requirement for the prosecution to seek the consent of the court before withdrawing from the prosecution of any person. The principles that emerge from the court’s interpretation of the provision and which on our own consideration appear to be wholly persuasive, and worthy of acceptance, are these; 1. The judgment of a Public Prosecutor cannot be lightly interfered with unless the court comes to the conclusion that he has not applied his mind or that his decision is not bona de. 2. It cannot be said that the Public Prosecutor had not applied his mind to the case or had conducted himself in an improper way, if in the light of the material before him the Public Prosecutor has taken the view that there was no prospect of securing a conviction of the accused. 3. When an application for withdrawal of a case is made, it is not necessary for the court to assess the evidence to discover whether the case would end in conviction or acquittal. https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1723/eng@2026-09-25 10

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4. The court has to see whether the the application is made in good faith, in the interest of public policy and justice and not to stie the process of law. The court after considering these facets of the case, will have to see whether the application suers from such improprieties or illegalities as to cause manifest injustice if consent is given. 5. The court only performs a supervisory function and not an adjudicatory function. 6. Consent of the court is not a matter of course. 7. When the Prosecutor makes the application for withdrawal after taking into consideration all the materials before him, the court exercises its judicial discretion by considering such materials and on such consideration either gives consent or declines consent. 8. When considering the legality, propriety or correctness of a nding or a conclusion, the revising court does not dwell at length with the facts and evidence of the case. 9. If the Prosecutor is able to show that he may not be able to produce sucient evidence to sustain the charge, an application for withdrawal from the prosecution may be legitimately made by him. 10. If some material has subsequently come to light which throws doubt on the veracity of the prosecution case, the Prosecutor can certainly apply for withdrawal on the ground that the prosecution is not well founded. 11. It may happen that a key witness may have died or some important evidence may have become unavailable, the Prosecutor may legitimately feel that it will not be possible to sustain the prosecution in the absence of such evidence and he may apply for withdrawal from the prosecution. 12. The court while considering whether to grant consent or not, must satisfy itself not only that the grounds are germane or relevant to advancement of public justice but also whether the grounds in fact are satisfactorily established. 33. The foregoing criteria, though not exhaustive, is a useful guide to a trial court in determining applications by the prosecution for withdrawal of charges against an accused person. We need only add for the avoidance of doubt, and accountability, such application by or on behalf of the DPP must be supported by cogent reasons stated on oath as was the case herein. Applying the criteria to the instant application, we are persuaded that the averments made by Evah Kanyuira, Prosecution Counsel, clearly demonstrated that the DPP independently applied his mind in making the decision to discontinue the prosecution of the appellant. It was averred that upon reviewing the decision to charge the appellant, it was established that it was not within her scope of work to receive and approve the accountable documents which were questioned in the cases where she was charged. Moreover, it became apparent that none of the witnesses had, given, or would give any evidence that directly or indirectly incriminates the appellant. It would seem, therefore, that the DPP may not have sucient evidence to sustain the charges against the appellant. In the circumstances, we are of the view that the trial court erred in refusing the DPP consent to discontinue the prosecution of the appellant. In the same vein, we nd that the learned Judge failed to take into account relevant factors in exercising his discretion and erroneously dismissed the appellant’s revision application, which invites reversal. 34. We think that this is the only position that ows from the giving eect to the wide and largely unfettered powers of the DPP who is not subject to the direction of any person or oce or authority in the discharge of his mandate as an independent oce so long as he does so within the principles that can be gleaned from the Constitution, the operationalizing statute and the relevant guidelines. The https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1723/eng@2026-09-25 11

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proper approach has to be one of judicial restraint as it is not the place of the trial magistrate or judge to substitute his discretion for that of the DPP, in whom the solemn yet constitutionally guardrailed authority to prosecute or terminate prosecutions is reposed. He remained accountable under the Constitution. The mischief is clear to see were it the case that a court were to compel the DPP to proceed with a prosecution he no longer believes in for absence of evidence or for being contrary to the public interest such a situation would create an untenable absurdity and would with near-certainty lead to a waste of scarce prosecutorial and judicial resources while saddling the hapless criminal defendant with oppressive costs and anguish. 35. Ultimately, we nd the appeal merited, and allow it. We set aside the ruling dated 7th February 2024 and substitute therefor an order allowing withdrawal of the charges by the DPP as per prayers 4, 5 and 6 of the application dated 30th August 2023. Order accordingly. DATED AND DELIVERED AT NAIROBI THIS 25TH DAY OF SEPTEMBER, 2026 O. KIAGE ……………….……………… JUDGE OF APPEAL JAMILA MOHAMMED ……………….……………… JUDGE OF APPEAL L. M. NDOLO ………………..…………… JUDGE OF APPEAL I certify that this is a true copy of the original. Signed DEPUTY REGISTRAR https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1723/eng@2026-09-25 12

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