Hfm (suing Through His Next Friend and Father, Fm) v The Honourable Attorney General & 1 other

b. The direction to direct the subject, the victim and her child born out of the alleged defilement to be extracted blood samples for DNA examination and analysis to ascertain paternity. v. That consequently, an order of prohibition be issued, restraining further proceedings in Criminal Case No. S.O. E002 of 2025 at the resident Magistrate’s Court at Wajir. vi. That costs of this application be provided for. 2. The application is premised on sections 362 and 364 of the Criminal Procedure Code, article 165(6) and (7) of the Constitution and the inherent power of the court. 3. The application is based on the grounds set out on the face of it and the supporting affidavit sworn by FM, father of the subject on 11.12.2025. He deposed that the subject was charged before the Wajir Resident Magistrate’s Court in Criminal Case No. S.O. E002 of 2025 with the offence of defilement of a girl aged 15 years. That during the trial, the complainant together with other prosecution witnesses testified that the alleged perpetrator was an adult male hence not the subject. It was stated that due to lack of evidence, the 2nd respondent made an application to withdraw the case under section 40 of the Sexual Offences Act. That the trial court promptly rejected the application and further directed that the subject, the complainant and her child be subjected to DNA examination. 4. He averred that the subordinate court’s directions, particularly the refusal to allow withdrawal despite exonerating evidence and the issuance of a directive for the DNA examination is illegal and improper. Therefore, this Honourable Court was called upon to invoke its supervisory jurisdiction to set aside the impugned orders by the trial magistrate. 5. In his replying affidavit, Prosecution Counsel Mr. Benard Owuor for the 2nd respondent supported the application on grounds that the complainant had categorically stated in her testimony that the subject/applicant herein was not the perpetrator and instead identified another person, Abdi Shukri. That faced with this disparity, the prosecution applied to withdraw the matter under Section 40 of the Sexual Offences Act. 6. Learned counsel contended that the trial court’s refusal to allow the application was unconstitutional and amounted to usurping the powers of the ODPP. Mr. Owuor emphasized that the ODPP is an independent office under Article 157 of the Constitution, empowered to discontinue proceedings before judgment in the interest of justice and to prevent abuse of process. 7. He expressed the view that the application to withdraw was made in good faith, guided by public interest and the administration of justice. He criticized the trial court for dismissing the application without giving reasons. He urged this Court to correct the error and allow the withdrawal of the case. 8. The 1st respondent did not participate in the proceedings herein. 9. The application was canvassed by way of written submissions. 10. The applicants submitted that the 2nd respondent made an application under section 40 of the Sexual Offences Act seeking to withdraw the suit against the subject herein but to the contrary, the court rejected thereby directing that the minor undergoes DNA testing. Counsel argued that the High Court’s revisionary jurisdiction under Section 362 of the Criminal Procedure Code empowered it to correct irregularities and illegalities, citing Joseph Nduvi Mbuvi v Republic [2019] eKLR where the court held that the object of this jurisdiction is to "correct manifest irregularities or illegalities" and ensure that where proceedings have been "legally derailed," they are brought back on track. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/3368/eng@2026-03-12 2

page 2 of 6

11. It was contended that the trial court acted improperly by refusing the ODPP’s withdrawal request under Section 40 of the Sexual Offences Act, thereby usurping the prosecutorial independence guaranteed under Article 157 of the Constitution. Relying on the cases of Dande & 3 others vs DPP & 2 Others (Petition 4 (E005 of 2022) and Grace Wairimu Sorora vs Chief Magistrate KEHC 8568, it was urged that a stay should be granted if proceedings would render the applicant’s a ‘pious’ explorer in a judicial process. Counsel contended that forcing the subject to undergo DNA testing despite exonerating testimony amounted to a fundamental miscarriage of justice, and that continuation of the trial would render the revision nugatory. 12. On the DNA order, counsel submitted that compelling extraction of blood samples was unnecessary and disproportionate, noting that DNA evidence is not mandatory to prove defilement. He maintained that the order violated the applicant’s constitutional rights and created an irreversible situation. 13. In conclusion, counsel urged this Court to set aside the DNA order and issue any further orders necessary to protect the minor and uphold the integrity of the judicial process. 14. The 2nd respondent submitted that the ODPP is an independent office under Article 157 of the Constitution, empowered to discontinue criminal proceedings at any stage before judgment without requiring consent from any authority.It was opined that the trial court’s refusal to allow the said withdrawal was unconstitutional and amounted to usurping the powers of the ODPP. 15. The prosecution maintained that the application was made in good faith, guided by public interest, the administration of justice and the need to prevent abuse of legal process. That continuing with the case against HFM despite the complainant’s testimony would be unjust. Counsel noted that the trial court gave no reasons for its refusal, which appeared arbitrary and in bad faith. 16. Accordingly, the ODPP urged the High Court to exercise its revisionary jurisdiction, set aside the decision of the Resident Magistrate’s Court, and allow the withdrawal application in Case No. SO E002 of 2025. 17. This court has considered the application, the replying affidavit and the respective parties’ submissions. The broad issue for determination is whether the application is merited. 18. It is trite that the power of this court in its revisionary jurisdiction is founded under Section 362 of the Criminal Procedure Code (Cap 75) Laws of Kenya, which provides that: “ The High Court may call for and examine the record of any criminal proceedings before any subordinate court for the purpose of satisfying itself as to the correctness, legality or propriety of any finding, sentence or order recorded or passed, and as to the regularity of any proceedings of any such subordinate court’’. 19. Article 165(6) of the Constitution provides that: “ The High Court has supervisory jurisdiction over the subordinate courts and over any person, body, or authority exercising a judicial or quasi-judicial function, but not over a superior court’’. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/3368/eng@2026-03-12 3

page 3 of 6

20. Article 157 (6) of the Constitution spells out the powers and responsibilities of the office of Director of Public Prosecutions. The same provides: “ The Director of Public Prosecutions shall exercise State powers of prosecution and may- 21. 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 clauses (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). Article 157(8), on the other hand, provides that; “ The Director of Public Prosecutions may not discontinue a prosecution without the permission of the court.” 22. It follows from the foregoing that when the Director of Public Prosecutions seeks to discontinue a criminal case, he must first obtain the court’s permission. In making such an application, the Director of Public Prosecutions is required to present clear and tangible reasons justifying the discontinuation of the proceedings. Conversely, where no sufficient justification is provided, the court retains the discretion to reject the application and allow the case to proceed. 23. Article 157 (6), (7), (8), (10), and (11) of the Constitution vests the DPP with express powers to prosecute all criminal cases on behalf of the state. The Director of Public Prosecution can therefore initiate, continue or choose to discontinue any criminal prosecution before a Court of law. 24. In the same breadth, Section 87A of the Criminal Procedure Code provides: “ 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— (a) 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.” 25. In this regard, Section 87(a) of the Criminal Procedure Code is pertinent. It empowers the prosecutor, at any stage before final judgment, to apply to the court seized of the matter for leave to withdraw the charge or charges against an accused person. This authority is intended to be exercised in the interest of the proper administration of justice and to guard against abuse of the legal process. Importantly, the provision must be construed in harmony with Article 157 of the Constitution, which outlines the powers and responsibilities of the Director of Public Prosecutions. 26. Accordingly, the trial court retains discretion to either grant or decline an application for withdrawal of a case, depending on the circumstances presented. In exercising this discretion, the Court is required to determine whether the threshold for withdrawal has been satisfied before proceeding to discharge the accused, as contemplated under the law. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/3368/eng@2026-03-12 4

page 4 of 6

27. In the case of George Taitumu vs Chief Magistrate Court, Kibera & 2 others [2014]eKLR, the Court stated: “ Section 87(a) of the Criminal Procedure Code gives the learned magistrate broad discretion to accept or reject an application for withdrawal of charges presented by the prosecutor. In light of Article 157(11) of the Constitution, such discretion has to be exercised judiciously taking into account the facts of each case and in particular whether the application is brought in the public interest, the interest of administration of justice and the need to prevent and avoid an abuse of the legal process.” 28. In the present matter, I have carefully reviewed the evidence of all prosecution witnesses, with particular emphasis on the complainant’s testimony. A consistent theme emerging from the evidence is that the complainant alleged she was defiled by one Abdi Shukri, who is not the accused before this Court. Indeed, the complainant expressly stated that she reported to the police identifying Abdi Shukri as the assailant, and expressed surprise that the police nonetheless arrested and charged the subject herein. 29. Pw2 her head teacher stated that after suspecting pw1 was expectant, he ordered for tests to be done on all the girls in the school. That the complainant was found to be pregnant hence implicating one Abdishukri. Besides, pw3 father to pw1 told the court that when he questioned his daughter as to who was responsible of her pregnancy, she implicated one Abdishukari. Equally, pw4 grandmother to pw1 stated that, when she realized pw1 was pregnant, she demanded to know who was responsible. That pw1 told her it was Abdishukri her father’s employee. The investigating officer on the other hand gave contrary evidence insisting that pw1 and her relatives had changed or recanted their evidence thus frustrating the prosecution of the case. 30. From the above cited contradictions, one would wonder how far such a case would even go. Where the complainant’s evidence and that of her key witnesses points to a different individual as the perpetrator, the credibility and reliability of the prosecution’s case against the accused is significantly undermined. The Court must therefore interrogate whether the threshold of proof required in criminal proceedings —proof beyond reasonable doubt—can be met in light of these inconsistencies. In criminal law, any doubt as to the identity of the perpetrator must be resolved in favour of the accused, as conviction cannot rest on uncertain or contradictory testimony. 31. In light of the foregoing, the 2nd respondent was compelled to invoke Section 40 of the Sexual Offences Act to withdraw the charge against the subject in question. The basis of this application was that the complainant was unable to identify the subject as the perpetrator, a position that was corroborated by the testimony of other prosecution witnesses. The 2nd respondent reasoned properly therefore that, in the absence of evidence directly linking the subject to the alleged offence, it would be contrary to the interests of justice to proceed with the prosecution. The decision to seek withdrawal was therefore informed by the principle that criminal liability must rest on credible and reliable evidence, and that continuing with a case devoid of such evidence would amount to an abuse of the court process. 32. Additionally, I am mindful that in sexual offence cases, DNA evidence is not a mandatory requirement for proof of penetration nor conclusive. Bearing in mind that the complainant expressly stated that the subject was a stranger to her, I am persuaded that, in such circumstances, it fell within the mandate of the 2nd respondent to seek withdrawal of the matter against the subject. The application was, in my view, properly informed by the interests of the administration of justice and the need to prevent abuse of the court process. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/3368/eng@2026-03-12 5

page 5 of 6

33. Consequently, I find that the trial Court, in dismissing the application, failed to exercise its discretion judiciously and thereby misdirected itself. It is not for the court to go on a fishing expedition for implicating evidence. A court is a neutral arbiter which must be fed with evidence and not to search for implicating evidence. For all purposes and intents, the ODPP had no choice in the circumstances other than to withdraw a charge that was geared towards embarrassing him. 34. In conclusion, I find that the application has merit and is hereby allowed as prayed. The application to withdraw the charge in Wajir S.O. case No. E002 of 2025 is hereby allowed and the case marked as withdrawn under Section 40 of the sexual offences Act. As a consequence, the trial court’s order directing for DNA test to be done in respect of this case is hereby set aside and the proceedings in respect of Wajir S.O case No. E002 of 2025 terminated. The subject accordingly is set free unless otherwise lawfully held. DATED, SIGNED AND DELIVERED VIRTUALLY THIS 12TH DAY OF MARCH 2026 ....................... J.N.ONYIEGO JUDGE https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/3368/eng@2026-03-12 6

page 6 of 6