Wasike v Kaita (Miscellaneous Criminal Application E034 of 2025) [2026] KEHC 1773 (KLR) (10 February 2026) (Ruling) Neutral citation: [2026] KEHC 1773 (KLR) REPUBLIC OF KENYA IN THE HIGH COURT AT BUSIA MISCELLANEOUS CRIMINAL APPLICATION E034 OF 2025 WM MUSYOKA, J FEBRUARY 10, 2026 BETWEEN MARIKO MUSTAFA WASIKE ............................................................... APPLICANT AND JOSEPH KAITA .................................................................................... RESPONDENT The High Court can grant leave to initiate private prosecutions The applicant sought leave to institute private prosecution against the respondent, the area Chief, for assaulting him. The applicant alleged interference with the criminal justice process by the respondent. The applicant contended that despite reporting the incident, no prosecution had been initiated. The High Court held that it had unlimited original jurisdiction in criminal matters and could grant leave for institution of private prosecution. It further held that, in the absence of a prescribed procedure, a party could approach it by whatever means seeking leave. Finding the application unopposed, the court allowed it and directed that charges be instituted before the Magistrate’s Court. Reported by Kakai Toili Jurisdiction – jurisdiction of the High Court – jurisdiction in applications seeking leave to initiate private prosecution - whether the High Court could grant leave to initiate private prosecution. Criminal Law – private prosecution – institution of private prosecution – requirement to seek court’s leave before institution of private prosecution - what was the proper way to seek leave to institute private prosecution. Brief facts The applicant filed the instant application seeking leave to institute private prosecution against the respondent, who was the Chief of Ratema Sub-Location in North Teso, Busia County. The applicant stated that he had been summoned to the respondent’s office and that upon attending he was physically assaulted by the respondent, thereby sustaining injuries. He subsequently sought medical treatment and reported the matter to the police, where it was recorded in the occurrence book (OB). The applicant contended that he was unable to obtain justice through the ordinary prosecutorial process. He alleged that the hospital where he was treated declined to fill or sign the P3 form necessary for criminal https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/1773/eng@2026-02-10 1
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proceedings, attributing that failure to interference by the respondent. As a result, the applicant asserted that the Office of the Director of Public Prosecutions (ODPP) had not taken steps to prosecute the respondent. In support of the application, the applicant annexed a draft charge sheet, a copy of the summons requiring his attendance at the Chief’s office, and OB extracts confirming the report made to the police. Although the respondent and the ODPP were served and participated in proceedings, neither filed responses. Issues i. Whether the High Court could grant leave to initiate private prosecution. ii. What was the proper way to seek leave to institute private prosecution? Held 1. There were no statutory provisions on to how leave to initiate prosecution was to be sought and obtained. In Kimani v. Kahara [1983] eKLR (Simpson & Sachdeva JJ), it was said that leave ought to be sought when the proposed accused persons appeared before the Magistrate’s Court, for plea taking, upon summons being issued to them. That suggested that the proper place for seeking leave would be at the Magistrate’s Court, where the trial ought to take place. However, that was under the retired Constitution. Under the current Constitution, primacy was given to substantive justice, and technicalities of procedure were to be eschewed. A party could, therefore, approach the court, by whatever means. 2. The High Court was granted unlimited original jurisdiction in criminal matters, by article 165(3) of the Constitution. It could handle anything that was within the mandate of the Magistrate’s Court. In any event, the Magistrate’s Court existed to assist the High Court discharge its mandate. Consequently, leave to initiate private prosecutions, could be granted by the High Court. Application allowed. Orders i. The charges shall be laid at the Magistrate’s Court, at Malaba, where summons to attend, by the respondent, shall also be obtained. The instant file shall be closed hereafter. Citations Cases 1. Kimani v Kahara (? 7 of 1982; [1983] KEHC 14 (KLR)) — Explained Statutes 1. Constitution of Kenya — article 165(3) — Interpreted Advocates Mr. Joseph Kaita for respondent Mr. Onanda for instructed by the Office of the Director of Public Prosecutions, for the Republic RULING 1. The application, for determination, is the chamber summons, dated 4th July 2025. It seeks leave to institute private prosecution against the respondent, Joseph Kaita. 2. The background is that the applicant had been invited to the office of the Chief of Ratema SubLocation, within North Teso, Busia. He honoured those summonses, and appeared there on 23rd June 2025. The Chief, the respondent herein, physically assaulted him. The applicant sought medical treatment, and reported to the police, vide OB/09/23/6/2025, at 16:30 hours. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/1773/eng@2026-02-10 2
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3. He complains that he is unable to get justice. The hospital, where he was treated, is unwilling to have the P3 form signed. He accuses the respondent of interfering with the process, by using his administrative position. It is on that account that he seeks leave to initiate a private prosecution against the respondent. 4. He has attached a copy of the draft criminal charge against the respondent, a copy of the summons by the respondent to attend to his office, and a copy of the OB particulars given to him by the police. 5. The matter was placed before me, on 9th September 2025, under Certificate of Urgency. I directed that the chamber summons be served, for hearing inter partes, on 22nd September 2025. 6. On 22nd September 2025, an Advocate for the respondent, appeared. The applicant indicated that the Office of the Director of Public Prosecutions (ODPP) had been served. The matter was put off to 9th October 2025. On that date all the parties had Advocates in the attendance. Directions were given, for filing of responses by the respondent and the ODPP. On 10th November 2025, it was directed that the matter be canvased by way of written submissions. There were subsequent mentions on 1st December 2025 and 10th December 2025. The respondent and the ODPP did not file any responses, and the matter was filed for ruling. 7. There are no statutory provisions on to how leave to initiate prosecution is to be sought and obtained. In Kimani v. Kahara [1983] eKLR (Simpson & Sachdeva JJ), it was said that leave ought to be sought when the proposed accused persons appear before the Magistrate’s Court, for plea taking, upon summons being issued to them. That suggested that the proper place for seeking leave would be at the Magistrate’s Court, where the trial ought to take place. 8. However, that was under the retired. Under the current Constitution, primacy is given to substantive justice, and technicalities of procedure are to be eschewed. A party can, therefore, approach the court, by whatever means. 9. The High Court is granted unlimited original jurisdiction in criminal matters, by Article 165(3) of the Constitution. It can handle anything that is within the mandate of the Magistrate’s Court. In any event, the Magistrate’s Court exists to assist the High Court discharge its mandate. Consequently, leave to initiate private prosecutions, can be granted by the High Court. 10. The respondent and the ODPP have not responded, to the application for leave. The application, dated 4th July 2025, is unopposed. I hereby grant it. The charges shall be laid at the Magistrate’s Court, at Malaba, where summons to attend, by the respondent, shall also be obtained. This file shall be closed hereafter. Orders accordingly. DELIVERED, VIA EMAIL, DATED AND SIGNED, IN CHAMBERS, AT BUSIA, ON THIS 10TH DAY OF FEBRUARY 2026. WM MUSYOKA JUDGE Mr. Arthur Etyang, Court Assistant. Mr. Joseph Kaita, the respondent, in person. Advocates Mr. Onanda, instructed by the Office of the Director of Public Prosecutions, for the Republic. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/1773/eng@2026-02-10 3
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