Samuel Metha Irungu & 54 Others v Director of Public Prosecutions

f. Costs of the application. 2. The application is expressed to be brought under articles 165(3), (6) and (7), 20, 21, 23, 48 and 50 of the Constitution, together with sections 136, 214, 362 and 364 of the Criminal Procedure Code. 3. The application is premised on the grounds appearing on its face and the supporting affidavit sworn by counsel for the applicants. 4. The applicants aver that they were arrested within Nanyuki Township during the Saba Saba commemoration on 7th July 2025 and jointly charged in Nanyuki Chief Magistrate CR E0442 of 2025 and E0443 of 2025 with the offence of malicious injury to property contrary to section 339(1) of the Penal Code. 5. It was deponed that the accused persons were arraigned before the trial court on 8th July 2025 where they took plea. Subsequently, on 29th July 2025, the prosecution orally applied to split the accused persons into clusters of five accused persons per file. The application was allowed, thereby giving rise to eleven separate files containing substantially similar charges and particulars arising from the same alleged transaction. 6. The applicants opposed the application before the trial court on grounds that the same was brought in bad faith, would occasion unnecessary multiplicity of proceedings, waste judicial resources and prejudice the accused persons in the conduct of their defence. 7. Aggrieved by the ruling, the applicants moved this court seeking revision on grounds that the splitting of the charge sheet was irregular, unsupported by law and likely to result in inconsistent findings, duplicated proceedings and unnecessary hardship upon the accused persons. Respondent’s Case 8. The respondent opposed the application through grounds of opposition dated 11th August 2025 contending inter alia that: a. The application does not meet the threshold for revision under sections 362 and 364 of the Criminal Procedure Code. b. The applicants have failed to demonstrate any illegality, impropriety or irregularity in the impugned ruling. c. The application is an attempt to invoke the appellate jurisdiction of this court through revision proceedings. d. The Director of Public Prosecutions acted within the powers conferred under article 157 of the Constitution. Analysis and Determination 9. I have carefully considered the application, the affidavits on record, the rival submissions by counsel and the applicable law. In my view, the following issue arises for determination: Whether the applicants have established grounds warranting this court’s exercise of its revisionary jurisdiction and what orders should issue. 10. The revisionary jurisdiction of this court is anchored under article 165(6) and (7) of the Constitution and sections 362 and 364 of the Criminal Procedure Code. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8177/eng@2026-06-11 2

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11. Section 362 of the Criminal Procedure Code provides: “ 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.” 12. The scope and purpose of revisionary jurisdiction was succinctly explained in Joseph Nduvi Mbuvi v Republic [2019] eKLR where Odunga J (as he then was) stated: “ ...the object of the revisional jurisdiction of the High Court is to enable the High Court, in appropriate cases... to correct manifest irregularities or illegalities and give appropriate directions on the manner in which the trial should proceed.” 13. Similarly, in Republic v John Wambua Munyao & 3 others [2018] eKLR, the Court emphasized that revisionary powers are intended to correct errors relating to legality, propriety and regularity of proceedings before subordinate courts. 14. The respondent has argued that the present application amounts to an appeal disguised as revision proceedings. I do not agree. The applicants challenge the legality and propriety of the procedure adopted by the trial court in permitting the splitting of a single criminal file into multiple files arising from the same transaction. That challenge properly falls within the ambit of section 362 of the Criminal Procedure Code. 15. The record shows that all the accused persons were arrested on the same date, charged jointly for allegedly committing the same offence, in the same place and during the same transaction. The particulars in the original charge sheet expressly indicate that the alleged acts were committed jointly. 16. Section 136(a) of the Criminal Procedure Code expressly provides: “ The following persons may be joined in one charge or information and may be tried together — (a) persons accused of the same offence committed in the course of the same transaction.” 17. The law therefore expressly contemplates and permits joint trials where offences arise from the same transaction. The rationale behind such joinder is to promote consistency in adjudication, avoid duplication of proceedings and ensure efficient administration of justice. 18. The prosecution nonetheless sought to “split” the accused persons into clusters of five accused persons per file. Significantly, no statutory provision authorizing such splitting was cited before the trial court or before this court. 19. The respondent attempted to justify the process under section 214 of the Criminal Procedure Code relating to amendment of charges. However, section 214 contemplates alteration of charges by way of amendment, substitution or addition of charges where a defect exists in the charge sheet. It does not envisage fragmentation of one criminal proceeding into multiple proceedings involving the same offence and same transaction. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8177/eng@2026-06-11 3

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20. In BNT v Republic [2021] eKLR, the Court of Appeal reiterated that criminal procedure must not occasion prejudice to an accused person and that procedural steps undertaken by the prosecution and trial court must accord with fairness and due process. 21. Equally instructive is Dennis Edmond Apaa & Another v Ethics & Anti-Corruption Commission & Another [2012] eKLR where the court underscored that criminal procedure should not be manipulated in a manner likely to prejudice accused persons or undermine the integrity of the judicial process. 22. I agree with the applicants that the splitting of the matter into eleven separate files is likely to result in unnecessary duplication of witnesses, proceedings, rulings and judgments. More fundamentally, it creates a real risk of inconsistent findings by different courts arising from substantially identical facts and evidence. Such an outcome would not only embarrass the administration of justice but would also undermine public confidence in the criminal justice system. 23. Further, the process would undoubtedly impose an unnecessary burden upon the accused persons, who would be compelled to defend multiple parallel proceedings arising from the same transaction. This militates against the constitutional imperative under Article 50 guaranteeing a fair trial. 24. The respondent relied heavily on article 157(6) of the Constitution regarding the independence of the Director of Public Prosecutions. There is no dispute that the DPP enjoys constitutional independence in instituting and conducting criminal proceedings. 25. However, article 157(11) expressly provides that in exercising prosecutorial powers, the Director of Public Prosecutions shall have regard to public interest, the interests of administration of justice and the need to prevent abuse of legal process. 26. In Republic v Faith Wangui [2015] eKLR, the court observed that although the DPP enjoys independence, prosecutorial discretion remains subject to constitutional and judicial oversight where the process adopted threatens fairness, legality or the administration of justice. 27. In the present matter, the trial court misdirected itself in holding that it lacked jurisdiction to interrogate the propriety of the prosecution’s application merely because the same emanated from the Office of the Director of Public Prosecutions. Courts retain supervisory jurisdiction to ensure that criminal proceedings comply with the Constitution and the law. 28. I therefore find that the procedure adopted by the prosecution and sanctioned by the trial court had no basis in law, amounted to an irregular and improper exercise of judicial discretion and is amenable to this court’s revisionary jurisdiction. 29. Consequently, the ruling delivered on 29th July 2025 together with all resultant files namely Nanyuki MCCR/E491, E492, E493, E494, E495, E496, E497, E498, E499, E500 and E501 of 2025 are hereby set aside. 30. The accused persons shall proceed to trial jointly under the original file being Nanyuki Chief Magistrate Criminal Case No. E0442 of 2025. 31. Orders accordingly. DATED SIGNED AND DELIVERED VIRTUALLY THIS 11TH DAY OF JUNE, 2026. A. K. NDUNG’U JUDGE https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8177/eng@2026-06-11 4

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