Republic v John Kimani Muturi

4. The Defence Counsel (Mr. Ndichu) does not oppose the Application. 5. Article 157 (6) of the Constitution is in the following terms; 6. (6) The Director of Public Prosecutions shall exercise State powers of prosecution and may:— (a) institute and undertake criminal proceedings against any person before any court (other than a court martial) in respect of any offence alleged to have been committed; (b) take over and continue any criminal proceedings commenced in any court (other than a court martial) that have been instituted or undertaken by another person or authority, with the permission of the person or authority; and (c) 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). (7) If the discontinuance of any proceedings under clause (6) (c) takes place after the close of the prosecution’s case, the defendant shall be acquitted. (8) The Director of Public Prosecutions may not discontinue a prosecution without the permission of the court. Section 82 of the Criminal Procedure Code under the Application is also brought provides for; “ Power of Director of Public Prosecutions to enter nolle prosequi 7. (1) In any criminal case and at any stage thereof before verdict or judgment, as the case may be, the Director of Public Prosecutions may enter a nolle prosequi, either by stating in court or by informing the court in writing that the Republic intends that the proceedings shall not continue, and thereupon the accused shall be at once discharged in respect of the charge for which the nolle prosequi is entered, and if he has been committed to prison shall be released, or if on bail his recognizances 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. (2) If the accused is not before the court when a nolle prosequi is entered, the registrar or clerk of the court shall forthwith cause notice in writing of the entry of the nolle prosequi to be given to the keeper of the prison in which the accused may be detained.” Article 157 (11) of the Constitution enacts: “ that in n exercising the powers conferred by the Article, the Director of Public Prosecution shall have regard to the public interest, the interests of administration of justice and the need to prevent and avoid abuse of the legal process.” 8. Section 23 of the Victim’s Protection Act requires that the opinion of the victim of the offence ought to be sought before the Director of Public Prosecutor (DPP) exercises his discretion to terminate a case. The law does not however state that the victim’s views must be adhered to. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18039/eng@2025-12-04 2

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9. In Republic Vs Nyalandi, Criminal Revision 524 of 2020 (2023) KEHC 1063, KLR (Criminal) (19 January 2023) (Ruling) it was opined that to determine if the threshold set in Article 157 (11) of the Constitution has been complied with, the court shall consider the following inter alia; a. Whether the Application is brought in good faith. b. Whether the society has a stake in the matter in issue. c. Whether the Accused will suffer prejudice if the Application is allowed or denied. d. Whether reasons in support of the Application are reasonable, sufficient and for adequate. e. Whether there has been inordinate delay in making the Application for withdrawal of the case f. The Sentiments of the Respondent to the Application. 10. As held in Republic –Vs- Sarah Wairimu (2019) KEHC 11946 (KLR); the court shall intervene in an Application to enter Nolle Prosequi where it is shown that the DPP abused discretion, or exercised it for improper purposes or where there is failure to exercise statutory discretion. This holding is approved in Seenoi Ene Parsimei Esho Sisiria & 8 Others –Vs- Attorney General (2013) eKLR. 11. There is no doubt pursuant to Article 157 (11)of the Constitution supra and Section 25 (1) the Office of the Director of Public Prosecutions Act that the DPP is obligated to seek permission of the court to discontinue any criminal proceedings. The issue for determination is whether the Application is merited in the circumstances obtaining in this case. 12. The Nolle Prosequi instrument before the court does not show if and how the provisions of Article 157 (11) of the Constitution were complied with. It is not demonstrated that the public interest and interests of the administration of justice have been considered before seeking to terminate these proceedings. The court is not also told how termination of the charge would prevent and avoid abuse of the legal process. 13. The Prosecution Counsel has not also informed the court if views of the deceased’s family were sought, and/or information on intention to enter Nolle Prosequi was given to them. This is a serious charge with attendant public interest that would obligate the DPP to explain why it should be terminated. 14. The Application does not therefore meet the necessary constitutional and legal threshold, and is premature. It is hereby dismissed. J. M. NANG’EA, JUDGE JUDGEMENT DATED, SIGNED AND DELIVERED VIRTUALLY AT NAKURU THIS 4TH DAY OF DECEMBER, 2025. In the presence of: Mr. Wakasyaka for the DPP Mr. Ndichu Advocate for the Accused The Accused The Court Assistant - Justine J. M. NANG’EA, JUDGE https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18039/eng@2025-12-04 3

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