The Director of Public Prosecutions v Shallesh Kumar Rai & 4 others

RULING Introduction 1. 2. The applicant in this matter is the Office of the Director of Public Prosecutions who by way of a Notice of Motion expressed to be brought under Judicature Act Cap 8 S. 3(2), Rule 3(1) and (2) High Court (Practice and Procedure) Rules Part 1 Vacation rules, Article 27, 40, 50, 157 & 165 (6) & (7) Of the Constitution of Kenya, 2010 and Sections 362, 364 & 367 of the Criminal Procedure Code, Cap 75, and all Other Enabling Provisions of Law seeks the following orders;a). This Application be certified as urgent, and service thereof be dispensed with in the first instance. (spent) b). That this Honourable court be pleased to grant the Applicant leave for this application to be heard during the current court vacation. (spent) c). This Honourable Court be pleased to order a stay of further proceedings in Milimani Chief Magistrate's Court Criminal Case No. E604 of 2023, pending the hearing and determination of this revision application. d). This Honourable Court be pleased to call for and examine the entire record of proceedings of the trial court in Criminal Case No. E604 of 2023. e). This Honourable Court, in the exercise of its supervisory and revisionary jurisdiction, be pleased to review the legality, propriety, and correctness of the Ruling and directions issued by Hon. P.K. Mutai (PM) on 26th November 2025, and to set aside and/or quash the said Ruling in its entirety. The applicant urges this Honourable Court to be pleased to substitute the trial court's Ruling with orders: a. Upholding the lawful decision of the Director of Public Prosecutions to withdraw the charges under Section 87(a) of the Criminal Procedure Code; b. Directing that the charges against all accused persons in Criminal Case No. E604 of 2023 be marked as withdrawn; c. Directing the trial court to discharge the accused persons accordingly. 3. The applicant further sought to have the Honourable Court issue any other or further orders, directions, or writs it may deem just and expedient to give effect to the constitutional mandate of the DPP, safeguard the rights of the accused, and prevent abuse of the court process. 4. The applicant further sought to have the costs of the Application provided for. 5. The applicant set out the following grounds on the face of the application;A. Constitutional and Jurisdictional Usurpation 1. The learned trial magistrate unlawfully usurped the constitutional mandate of the Director of Public Prosecutions under Article 157 of the Constitution by substituting her own discretion or that of the DPP, thereby violating the doctrine of separation of powers and the independence of the ODPP as guaranteed under Article 157(10). https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11677/eng@2026-04-30 2

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2. The magistrate erred in law by creating and applying a novel, extra-legal, and unconstitutional standard that the DPP must seek and obtain the consultation and consent of a complainant before exercising the power to withdraw charges, a standard nowhere found in the Constitution, the Criminal Procedure Code, the ODPP Act, or binding jurisprudence. 3. The Ruling flagrantly disregards Article 157(10) which provides that: "The Director of Public Prosecutions shall not require the consent of any person or authority for the commencement of criminal proceedings and in the exercise of his or her powers or functions, shall not be under the direction or control of any person or authority." By requiring the complainant consent for withdrawal, the magistrate placed the DPP under the direction and control of a private individual. B. Misinterpretation and Misapplication of The Victims Protection Act 4. The learned magistrate grossly misconstrued the Victims Protection Act, 2014, by elevating the victim's participatory right under Section 9(2)(a) into an absolute veto power over prosecutorial discretion. The Act provides for the victim's views to be heard and considered, not to be binding on the DPP. This was authoritatively settled in Joseph Lendrix Waswa v Republic (Supreme Court Petition No. 23 of 2019), where courts held that victims do not wear the hat of a secondary prosecutor and cannot direct the DPP. 5. The magistrate's reliance on the victim's lack of consultation as the primary ground for dismissing the withdrawal application is legally perverse, amounts to a misdirection on a point of law, and constitutes a grave error apparent on the face of the record. C. Disregard of Evidence, Affidavits, And Submissions 6. The trial court wholly ignored the comprehensive and unchallenged evidence placed before it, including: a) The Supporting Affidavit of Shailesh Kumar Rai sworn on 8th October 2025, detailing the shareholder dispute, corporate governance issues, and the civil nature of the conflict. b) The Detailed Written Submissions of the Accused Persons filed on 29th September 2025, which extensively demonstrated: c) i. The lack of a valid complainant (the company Heritage Flowers Ltd. never complained); ii. The Application of Section 238 of the Companies Act and the derivative claim doctrine; iii. The abuse of process in weaponizing criminal law for civil gains; iv. The validity of the impugned contracts which underlie the forgery counts. The Prosecution's Submissions and Affidavits (19th September & 22nd October 2025) which clearly articulated the DPP's review, the conclusion that the matter was civil, and the decision made in the public interest and to prevent abuse of process. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11677/eng@2026-04-30 3

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7. The Honourable learned magistrate failed to engage with the core legal issues raised, particularly: a) Whether a shareholder can, in his personal capacity, institute a criminal complaint for alleged wrongs against the company (Salomon V Salomon principle). b) Whether the charges were legally sustainable in the absence of a complaint or board resolution from the alleged victim-company (DPP v AG & 12 others [2022] KECA 397). c) Whether continuing a criminal trial where the DPP has concluded there is no realistic prospect of conviction serves any public interest. D. Error In Applying Section 193A Of The Criminal Procedure Code 8. The Honourable magistrate erred by treating the existence of a parallel civil suit (HCCC E894 of 2021) as a neutral factor, ignoring the settled principle that while Section 193A allows concurrency, criminal proceedings must not be used as a tool to oppress, harass, or gain leverage in civil disputes. The Supreme Court in Jirongo v Soy Developers Ltd & Others and Dande v Inspector General expressly warned against using criminal process to "aid proof of matters before a civil court" or to "force a suspect's hand"; precisely the scenario in this case. 9. The DPP's decision to withdraw was, in part, to prevent this very abuse of process. The trial court's insistence on proceeding despite this finding perpetuates the abuse. E. Failure to Consider the Public Interest and Administration Of Justice 10. 11. 12. The learned magistrate failed to apply the correct legal test under Article 157(11) of the Constitution, which mandates the DPP to consider: a) The public interest; b) The interests of the administration of justice; c) The need to prevent and avoid abuse of the legal process. The DPP's decision was a textbook application of this test: a) Public Interest: Not wasting judicial resources on a civil dispute; protecting individuals from oppressive prosecution. b) Administration of Justice: Ensuring the appropriate forum (Civil Court) adjudicates the dispute. c) Preventing Abuse: Halting the misuse of criminal law for commercial coercion. The Honourable magistrate provided no reasoned analysis as to how continuing the prosecution served any of these constitutional pillars. The Ruling is therefore devoid of rational justification and Wednesbury unreasonable. F. Procedural Irregularity and Denial of Fair Administrative Action 13. The Ruling is procedurally improper. The magistrate dismissed the Application based on a ground (lack of victim consultation) that was not a legally recognized https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11677/eng@2026-04-30 4

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precondition for granting leave to withdraw under Section 87(a) CPC. This constitutes a failure to exercise jurisdiction according to law. 14. The continued prosecution against the DPP's independent, reasoned, and constitutional decision violates the accused persons' right to a fair trial under Article 50, as it subjects them to a process the constitutionally mandated prosecutor has deemed unfit, oppressive, and abusive. G. Manifest Miscarriage of Justice and Prejudice 15. 16. Unless revised, the Ruling will occasion a grave and irreparable miscarriage of justice. The accused persons, including a limited liability company, face: a) Continued stigma, anxiety, and expense of a criminal trial. b) Severe reputational and business harm. c) The absurdity of being criminally tried for actions arising from internal company contracts and governance-a matter purely for civil and company law. The scheduled part-heard hearing on 12th February 2026 will compound this prejudice and entrench an unlawful process. H. Supervisory Jurisdiction of The High Court Is Triggered 17. This is a prime and compelling case for the exercise of this Honourable Court's supervisory and revisionary jurisdiction under Article 165(6) & (7) and Sections 362-367 CPC. The trial court's decision exhibits: a) Illegality: By imposing an unconstitutional condition on the DPP. b) Irregularity: By ignoring evidence and applicable law. c) Impropriety: By facilitating an abuse of process. d) Incorrectness: In its entire legal reasoning and conclusion. 6. The application was supported by the affidavit of one ROBERT MUTUMA, a Prosecution Counsel in the Office of the Director of Public Prosecutions. 7. In his affidavit counsel annexed ;- 8. a. I annex and rely upon the paginated Bundle of Documents marked as exhibit "VK- 1", comprising: b. The impugned Ruling of 26/11/2025. c. The Prosecution's Application to Withdraw and all supporting submissions & affidavits. d. The Accused Persons' Supporting Affidavit (Shailesh Rai, 8/10/25) and Written Submissions (29/9/25). e. The Complainant's replying affidavit and submissions. f. Copies of relevant correspondence from the ODPP file. According to counsel the trial magistrate's Ruling amounted to a profound error that requires urgent correction by this Honourable Court. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11677/eng@2026-04-30 5

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9. He further deposed that the DPP's decision was lawful, procedurally sound, and constitutionally compliant. 10. In his view the trial court had no basis to deny it. He went on to state that the Ruling is an affront to prosecutorial independence and a blueprint for how criminal courts can be misused in commercial wars. 11. Counsel concluded by stating that it is in the overarching interests of justice that this revision be allowed. Applicant’s Submissions 12. The Applicant urged this Honourable Court to substitute the Ruling of the learned Honorable Magistrate with an order upholding the decision of the Director of Public Prosecutions to withdraw the charges under Section 87(a) of the Criminal Procedure Code, mark the charges as withdrawn, and direct the discharge of the accused persons, together with any further orders necessary to safeguard the constitutional mandate of the DPP, protect the rights of the accused, and prevent abuse of the court process. 13. The Applicant submitted that the learned trial magistrate unlawfully usurped the constitutional independence of the Director of Public Prosecutions under Article 157 of the Constitution of Kenya, 2010 by refusing to allow withdrawal under Section 87(a) of the Criminal Procedure Code. 14. The applicant cited Article 157(6) which he argued vests the DPP with exclusive authority to institute and undertake criminal proceedings and to discontinue such proceedings at any stage before judgment, while Article 157(10) provides that the DPP shall not require the consent of any person or authority and shall not be under the direction or control of any person or authority. 15. The Applicant contended that the DPP acted within the law and in the public interest upon review of the matter, having established that the dispute in Criminal Case No. E604 of 2023 is civil and commercial in nature. 16. The Supporting Affidavit of Shailesh Kumar Rai sworn on 24th October 2025 demonstrates that the matter concerns shareholder disputes, corporate governance issues, and lacks a valid complainant, noting that Heritage Flowers Limited is not the complainant. 17. Counsel further submitted that issues relating to Section 238 of the Companies Act, the derivative claim doctrine, and the validity of the impugned contracts fall within the domain of civil law and are properly adjudicated through civil processes. 18. Further, the applicant contended that the learned magistrate erred by imposing an extra-legal requirement that the DPP must consult and obtain consent from the complainant prior to withdrawal, a requirement not provided for in the Constitution, the Criminal Procedure Code, the ODPP Act, or jurisprudence, and which effectively placed the DPP under the direction and control of a private individual contrary to Article 157(10). 19. On the second issue, the Applicant submitted that the learned magistrate misconstrued victim rights under Section 9(2)(a) of the Victim Protection Act, No. 17 of 2014 by elevating the victim’s participatory rights into a veto over prosecutorial discretion 20. The Applicant relied on Joseph Lendris Waswa v Republic and Waswa v Republic (Supreme Court Petition No. 23 of 2019) and Waswa v Republic [2020] KESC 23 (KLR), where the Supreme Court held: “We are of the view that the victim has no active role in the decision to prosecute... https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11677/eng@2026-04-30 6

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This is the sole duty of the DPP.” The Supreme Court further set out guiding principles governing victim participation, including that the applicant must be a direct victim or legal representative, that participation is subject to the nature and stage of proceedings, that it must not occasion undue delay, that it is limited to the views and concerns of the victim, that it must not prejudice the rights of the accused, that the trial court retains control over questioning, that prosecutorial duties remain solely with the DPP, and that while the victim’s views may be persuasive and acknowledged in the public interest, they are not to be equated with the public interest. 21. The Applicant submitted that in the present case the DPP, having found that the evidence is insufficient and that the dispute falls within civil and commercial law, properly exercised its discretion to withdraw under Section 87(a). The magistrate’s reliance on lack of consultation with the victim as the primary ground for refusing withdrawal is therefore a misdirection in law and constitutes an error apparent on the face of the record. 22. On the third issue, the Applicant submitted that the continuation of the proceedings constitutes an abuse of the criminal process contrary to Article 157(11) of the Constitution and Section 193A of the Criminal Procedure Code. 23. The trial court is said to have failed to properly consider the unchallenged evidence before it, including the Supporting Affidavit of Shailesh Kumar Rai sworn on 24th October 2025, the Detailed Written Submissions of the Accused Persons filed on 29th September 2025, and the Prosecution’s Submissions and Affidavits dated 19th September and 22nd October 2025, all of which demonstrate that the dispute is civil in nature, involves corporate governance issues, lacks a valid complainant, and raises issues relating to Section 238 of the Companies Act and the derivative claim doctrine, as well as the validity of the impugned contracts underlying the forgery counts. 24. The Applicant further contended that the learned magistrate failed to address key legal issues, including whether a shareholder can institute criminal proceedings in respect of alleged wrongs against a company in light of the Salomon Salomon principle, whether the charges are sustainable in the absence of a complaint or board resolution from the alleged victim-company as contemplated in DPP v AG & 12 others [2022] KECA 397, and whether continuing proceedings where the DPP has found no realistic prospect of conviction serves any public interest. 25. Further, the applicant submitted that the learned magistrate erred in the application of Section 193A of the Criminal Procedure Code by treating the existence of a parallel civil suit, HCCC E894 of 2021, as a neutral factor, without considering that although concurrent proceedings are permissible, the criminal process must not be used to oppress, harass, or gain leverage in civil disputes. 26. The Applicant relied on Jirongo v Soy Developers Ltd & Others and Dande v Inspector General, where the Supreme Court expressly warned against using criminal proceedings to aid proof of matters before a civil court or to force a suspect’s hand. 27. The Applicant urged this Honourable Court to exercise its supervisory and revisionary jurisdiction under Article 165(6) and (7) of the Constitution and Sections 362–367 of the Criminal Procedure Code to cure the illegality, irregularity, impropriety, and incorrectness of the ruling by the learned magistrate, and to allow the application as prayed. Victim’s Submissions 28. The Complainant in opposition to the Applicant’s Application for Revision brought under Sections 362 and 364 of the Criminal Procedure Code, submitted that the Application is misconceived, legally https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11677/eng@2026-04-30 7

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untenable, and constitutes an abuse of this Honourable Court’s revisionary jurisdiction, and that the impugned ruling was lawful, reasoned, and consistent with constitutional principles. 29. On the issue of whether the trial court usurped the powers of the Director of Public Prosecutions under Article 157 of the Constitution, the Complainant submitted that the Applicant’s argument was fundamentally flawed for failing to appreciate that prosecutorial discretion is not absolute. 30. The victim’s counsel submitted that Article 157(11) expressly provides that in exercising prosecutorial powers, the Director of Public Prosecutions shall have regard to the public interest, the interests of the administration of justice, and the need to prevent and avoid abuse of the legal process. 31. The victims posited that the courts retain supervisory authority to ensure that such discretion is exercised in accordance with constitutional dictates. In Republic v Director of Public Prosecutions ex parte Chamanlal Vrajlal Kamani & 2 Others [2015] eKLR, the High Court held: “The discretion of the DPP is not unfettered. The court may intervene where the discretion is exercised arbitrarily, capriciously or in a manner that undermines the administration of justice.” 32. The Complainant contended that by interrogating the propriety of withdrawal under Section 87(a) of the Criminal Procedure Code, the trial court did not usurp the powers of the DPP but rather fulfilled its constitutional mandate. 33. On whether withdrawal under Section 87(a) of the Criminal Procedure Code is automatic, the Complainant submits that the Applicant proceeds on an erroneous premise. The statutory language is permissive, providing that the court “may permit” withdrawal, thereby vesting discretion in the court. In Republic v Director of Public Prosecutions ex parte Abubakar [2017] eKLR, the Court stated: “The discretion donated to the court under section 87(a) of the Criminal Procedure Code is not idle. The court must be satisfied that the withdrawal is in the interests of justice.” 34. Further, in Kuria & 3 Others v Attorney General [2002] 2 KLR 69, the Court held: “The court has power and indeed the duty to prohibit criminal proceedings where they amount to an abuse of the process of the court.” The Complainant submits that a court cannot be reduced to a mere rubber stamp for prosecutorial decisions, particularly where withdrawal would occasion injustice or prejudice to victims. 35. On the question of victims’ rights, the Complainant submitted that the Applicant’s position improperly marginalizes the Complainant and fails to reflect the current constitutional framework. 36. Article 50(9) of the Constitution mandates Parliament to enact legislation providing for the protection, rights, and welfare of victims of offences. In Joseph Lendrix Waswa v Republic (Petition No. 23 of 2019), the Supreme Court held: “A victim has a right to be heard and to participate in the criminal justice process, either in person or through a legal representative.” The Court further observed: “Criminal justice is no longer a two-party contest between the State and the accused; victims are recognized participants.” 37. The victims further submitted that the Learned Magistrate’s refusal to permit withdrawal ensured that the Complainant’s constitutional and statutory rights were not rendered illusory. 38. On the alleged misapplication of Section 193A of the Criminal Procedure Code, the Complainant submitted that the Applicant’s reliance on the existence of parallel civil proceedings is misplaced. In Jirongo v Soy Developers Limited & Others [2021] eKLR, the Supreme Court held: “The mere existence of a civil dispute does not bar criminal proceedings, nor should the criminal process be used to advance or defeat civil claims.” https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11677/eng@2026-04-30 8

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39. Similarly, in Dande v Inspector General of Police & Another [2019] eKLR, the Court held: “Section 193A does not provide a basis for terminating criminal proceedings merely because civil proceedings exist.” The victims therefore submitted that the trial court correctly rejected the invocation of Section 193A as a basis for terminating the criminal proceedings. 40. With regard to the scope of this Honourable Court’s revisionary jurisdiction, the victims submitted that the Applicant improperly invites this Court to substitute its discretion for that of the trial court. 41. Revision is not an appeal and is limited to correcting illegality, impropriety, incorrectness, or irregularity. In George Aladwa Omwera v Republic [2016] eKLR, the Court held: “The revisionary jurisdiction of the High Court is supervisory. It is not meant to enable the court to substitute its own views for those of the trial court.” The Complainant contends that no such error has been demonstrated to warrant interference under Sections 362 and 364 of the Criminal Procedure Code. 42. On the question of public interest and the administration of justice, the Complainant submitted that public interest remains a central consideration under Article 157(11) of the Constitution. 43. In Republic v Director of Public Prosecutions ex parte Chamanlal Vrajlal Kamani, the Court emphasized: “Public interest includes ensuring that alleged offenders are subjected to due process and that criminal proceedings are not terminated capriciously.” 44. It was submitted that allowing withdrawal at the stage reached would have undermined public confidence in the justice system and encouraged impunity. 45. The Learned Magistrate according to the victims properly balanced prosecutorial discretion, victims’ rights, and public interest. 46. In conclusion, the victim submitted that the Application for Revision is misconceived, legally untenable, and an abuse of the court process. The ruling by Hon. P.K. Mutai delivered on 26 November 2025 is lawful, reasoned, consistent with constitutional principles, and firmly grounded in precedent. The victim therefore craved for the Application for Revision be dismissed with costs. Analysis And Determination 47. In Kenya, the power of the Director of Public Prosecutions (DPP) to withdraw a case is subject to judicial oversight. Courts have increasingly moved away from being a "rubber stamp" for the DPP's decisions, establishing that the "permission of the court" required by the Constitution is not substantive requirement. 48. The inclusion of the provision requiring the courts to grant permission to withdrawal was meant to ensure that the courts satisfy themselves as to the reasons for termination of a criminal case. The courts are however not expected unreasonably deny the Prosecution permission to withdraw where reasons have been advanced that disclose that the continuation of the trial is undesirable. 49. The intervention of courts in oversighting the DPP should be in the clearest of cases otherwise courts must never be seen to usurp the Constitutional role of the Director of Public Prosecutions. 50. The court upon being moved by the DPP to grant permission to withdraw an on -going prosecution would be required the grounds or reasons advanced by the DPP in support of the withdrawal. The court’s role is not ceremonial but a constitutionally underpinned power to check on any excesses that may be manifestly discernible in such instances. 51. The court will certainly intervene where the power is shown to be exercised on the basis of mala fides or the decision is unreasonable based on the facts presented to the court. In Kuriuki v Director of https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11677/eng@2026-04-30 9

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Public Prosecution (Criminal Revision E013 of 2023) [2024] KEHC 1174 (KLR) The High Court affirmed that while the DPP has the power to initiate and discontinue cases, this discretion must be exercised judiciously. It is important to emphasize that the exercise of the prosecutorial power must not be whimsical or capricious. It must be reasonable and proportionate. 52. The court in deciding an application under Section 87(a) CPC, a trial court must consider: a). The public interest. b). The interest of the administration of justice. c). The need to prevent and avoid an abuse of the legal process. 53. If the DPP fails to provide reasons that satisfy these three pillars, the court is within its right to decline the withdrawal. 54. The court is also enjoined at that stage to consider the views expressed by the Victim in regard to the decision of the prosecutor. The court must of course remain aware that the prosecutor retains the sole responsibility to prosecute and is not bound by the Victims views. The views of the Victim must however be considered by the Court as provided for under Section 9 (2) (a) of the Victims Protection Act. 55. The instant application invites this court to reverse the decision of the lower court in exercise of the supervisory power bestowed upon this court under Article 165 (6) of the Constitution as read together with Sections 362 and 364 of the Criminal Procedure Code. 56. The jurisdiction of the Court under those provisions is to inquire into the, legality, regularity, correctness or propriety of the decision of the trial court. 57. The High Court is not meant to substitute its decision for that of the Magistrate. It is a power geared towards correcting procedural impropriety whenever that is brought to the fore by the party seeking to have the Magistrate’s decision reviewed. 58. The court determining the application in the lower court will have determined the application for permission to withdraw after a full consideration of the reasons against the background of among other things the gravity of the Offense and the stage at which the application is made. 59. In Nalianya v Office of the Director of Public Prosecution (Criminal Revision E230 of 2023) [2023] KEHC 19415 (KLR) in this case the court observed that courts will scrutinize withdrawals more heavily if the case is near completion. The court emphasized that the "permission" is not automatic and must be balanced against the public interest, especially when the state has already expended significant resources on a trial. 60. Further, in determining applications for withdrawal the court is obligated to protect against abuse of Process. The DPP under Article 157 (11) is required to guard against abuse of the criminal justice process and protect the interests of the administration of justice. 61. The instant application is somewhat interesting in that at page 5 of the Ruling by the learned Honorable Magistrate makes reference to a letter dated 21st March 2024 where the Office of the DPP is quoted to have written to the from of CM Advoctaes LLP and stated; “we have independently and thoroughly looked at your aforesaid letter and noted that there is no basis to warrant a review of our decision to charge the accused. Consequently, we direct that this matter proceeds to its logical conclusion”. This Court has independently confirmed from the record that the letter is annexed as “RM2” in the replying affidavit. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11677/eng@2026-04-30 10

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62. The letter was written by one Dorcas Rugut Ag. Senior Assistant Director of Public Prosecutions. Notably. the applicant throughout their submissions and in their well -structured grounds in support of the application did not explain what changed to warrant the withdrawal. Further, the letter sanctioning prosecution by Mr. Joseph Riungu SADPP dated 19th May 2023 details four separate charges that were to be preferred against the respondents. The charges included Forgery and Money Laundering offenses which cannot by any stretch of imagination be said to be matters falling within the realm of a civil case. 63. The argument by the applicant is that the court erred by declining to allow the matter to be withdrawn for it to be resolved within a civil suit. The nature of the charges and the position taken by the DPP through Ms Rugut in her letter does not accord with the latter narration by the applicant. 64. The issues of money laundering and forgery cannot strictly be issues that can competently be determined in a civil suit given their very nature. 65. Once the DPP had declined to review his own decision to prosecute, any further review by the same office would only have been permissible on account of discovery of a new and important matter that could not by have been discovered through the exercise of due diligence by a reasonable prosecutor lawfully in exercising his or her discretion to prosecute. 66. Under Section 87(a) of the Criminal Procedure Code and Article 157 of the Constitution, Kenyan courts possess the discretion to decline an application by the Director of Public Prosecutions to withdraw a criminal case if it constitutes an abuse of process or fails to serve the interests of justice. Courts may also refuse withdrawal when the application is deemed to be a tactic to delay justice, ignores victim rights, or is filed at an advanced stage of proceedings. 67. The court will not also permit a withdrawal where the same is predicated on irrelevant considerations or is manifestly irrational. 68. The applicant in his accuses the learned Hon Magistrate of not making a decision that meets the threshold of Wednesbury’s reasonableness. The test of reasonableness of a decision is not one of the matters that can suffice in a revision. 69. The jurisdiction of the court in a Revision is very specific. It cannot be expanded to encompass judicial review. The applicant has to confine himself within the narrow scope of a Revision as provided for under the law. 70. If the High Court was to venture into determining the reasonability or otherwise of the learned Honorable Magistrate, the court would be itself guilty of acting beyond the scope its Revisionary jurisdiction. In V.G Ramachandran’s, Law of Writs, V. Sudhish Pai , Volume 1, 7th Edition at Page 17 and 18 the learned author writes;“ 13. Unreasonableness-review Of Discretion Then there is the requirement that the authority not only acts within the confines of its powers and according to the procedure but that it should also act reasonably. If the action is unreasonable, it would again be ultra vires. As Lord Bingham says in his eminently readable book The Rule of Law: All officials at all levels must exercise the powers conferred on them in good faith, fairly, for the purpose for which the powers are conferred, without exceeding the limit of such powers and not unreasonably. This is indeed fundamental and lies at the very heart of the rule of law principle.45 https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11677/eng@2026-04-30 11

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An authority vested with power and discretion must direct itself properly in law, take into consideration matters bound to be considered and exclude from consideration irrelevant matters. If it does not obey these rules, it may be said to be acting unreasonably. This is the classic enunciation of Wednesbury unreasonableness and it is a standard test for reviewing actions of authorities vested with statutory power and discretion.46 Then we have Lord Diplock's celebrated formulation of the principles of judicial review of administrative action in the GCHQ case". They are: illegality which is the main substantive area of ultra vires, where the law is breached; irrationality which is succinctly referred to as Wednesbury unreasonableness, it applies to a decision which is so outrageous in its defiance of logic; and procedural impropriety which is failure to follow the prescribed statutory procedure or rules of natural justice. (emphasis added) 71. The learned Honorable Magistrate exercised his decision would thus be the subjected to scrutiny by this court to ascertain whether there was an illegality, irregularity, incorrectness or impropriety in the decision. The applicant has not established any of these limbs. 72. In Tom Bingham, The Rule of Law (Allen Lane, An Imprint of Penguin Books 2010) 50,54 To quote Lord Bingham: “What matters is that decisions should be based on stated criteria and that they should be amenable to legal challenge, although a challenge is unlikely to succeed if the decision was one legally and reasonably open to the decision-maker. The rule of law does not require that official or judicial decision makers should be deprived of all discretions, but it does require that no discretion should be unconstrained so as to be potentially arbitrary. No discretion may be legally unfettered.49” (emphasis added). 73. The learned honorable Magistrate exercised his discretion in determining the application for withdrawal thus the unless it is demonstrated that the court exercised that discretion in ignorance of principles governing the consideration of such applications, considered irrelevant matters or failed to consider relevant matters in determining the matter, this court cannot intervene and reverse the decision. 74. The fact that the trial court considered the views of the Victims cannot be said to be an irrelevant matter as that is the dictate of the law under Section 9 of the Victims Protection Act. 75. In considering revisional powers under the Indian Criminal Procedure code , the Supreme Court in the case of Sriraja Lakshmi Dyeing Works v Pangaswamy Chettair [1980] 4SCC 259 said as follows: “ The conference of revisional jurisdiction is generally for the purpose of keeping tribunals subordinate to the revising tribunal within the bounds of their authority to make them act according to law, according to the procedure established by law and according to well defined principles of justice. Revisional jurisdiction as ordinarily understood with reference to our statues is always included in appellate jurisdiction but not vice versa. The question of the extent of appellate or revisional jurisdiction has to be considered in each case with reference to the language employed by the statute.’’(emphasis mine) 76. The High Court will therefore not intervene by way off revision unless it is shown that the trial court acted outside the bounds of law. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11677/eng@2026-04-30 12

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77. Article 157 (8) of the Constitution by requiring that before a withdrawal of a case happens the permission be sought, intended to introduce a check on the manner of exercise of prosecutorial decision thus the argument by the applicant that the decision by the Learned Magistrate had no basis in law is without merit. 78. Under Article 159 (2) (a) of the Constitution, court is mandated to ensure that justice is done to all including the victims of crime. A.K SIKRI in Constitutionalism & the Rule of Law In a theatre of Democracy Page 113 writes: “The rule of law implies that the law is above all and is to be given supremacy. It also emphasises the principle that every individual or corporation or all the branches of the government are supposed to act according to law, with the underlying message: "howsoever high and mighty one may be, law is above him". The essence of the rule of law is to preclude arbitrary action and promote a fair procedure”. The court acts as the guardian of the rule of law to ensure that all actions taken in the name and spirit of the law are not arbitrary and promote a fair procedure. The learned Hon Magistrate therefore was within the law in rejecting the application to withdraw the matter considering the express intention of the DPP to proceed with the matter vide the letter by Ms Rugut Ag. SADPP and given that there was no evidence that there was new material that the Prosecution considered to review its position. 79. The upshot of the above is that the application seeking to revise the decision of the learned Honorable Magistrate has no merit and the same is hereby dismissed. 80. It is so ordered. DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI THIS 30TH DAY OF APRIL, 2026. A. M. MUTETI JUDGE - In the presence of: Habiba: Court Assistant Mogere for Applicant Waigwa Absent Gachau watching brief victim https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11677/eng@2026-04-30 13

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