https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11462

Bhai v Office of the Director of Prosecutions (Criminal Revision E188 of 2025) [2026] KEHC 11462 (KLR) (16 July 2026) (Ruling) Neutral citation: [2026] KEHC 11462 (KLR) Republic of Kenya In the High Court at Migori Criminal Revision E188 of 2025 ACA Ong’injo, J July 16, 2026 Between Bima Sheka Meta Bhai Applicant and Odpp Respondent Ruling 1.The application before this court dated 10th December 2025 was brought pursuant to Article 157 of the Constitution of Kenya, Section 80, 87(a) & 88 of the Criminal Procedure Code; Section 2 & 9 of the Victim Protection Act and all other enabling provisions of the law seeking for orders that the court calls for and examine the record of the court in Migori CMC CR. C. Nos. E374 and E381 of 2023 for the purposes of certifying itself as to the correctness, legality and propriety of the orders of the court issued on 18th September 2024 and 4th November 2024 respectively. 2.That the court be pleased to review, revise and set aside the order of the withdrawal and vary the same with the view of reinstating the above stated cases which were withdrawn by the prosecution on 18th September 2024 and 4th November 2024 respectively. 3.That the Applicant be allowed to conduct private prosecution on the Migori CMC CR. C. No.374 and 381 of 2023 through the firm of M/S Apondi and Company Advocates. 4.The Applicant also sought for costs of the application. 5.The application is premised on the grounds on its face and the supporting affidavit of the Applicant sworn on 10th December 2025. 6.Upon service of the application upon the Respondent, the Respondent filed a Notice of Preliminary Objection dated 4th March 2026 on the following grounds:-1.That the application offends the provisions of Section 88 of the Criminal Procedure Cod in that it is only the trial Magistrate who is vested with the statutory power to grant leave for private prosecution. Further, the said application contravenes Article 157 of the Constitution.2.That the original jurisdiction of the offences in the two cases E374 and 382 both of 2023 lies in the Magistrates court and not the High Court.3.That the power to grant leave for private prosecution is exclusively conferred upon the Magistrate, and such an application ought to be made before the trial court during the pendency of the matter. Consequently, this court lacks the requisite jurisdiction to hear and determine the application for private prosecution as sought by the Applicant. 7.Directions were taken for hearing of P.O. by way of written submissions and parties were given time to file submissions within specific period of time. 8.The Objector’s submissions are dated 20th May 2026 and are to the effect that jurisdiction is the bedrock upon which every suit is founded. It must exist at the time of filing and must subsist throughout the proceedings. That where, at any stage, a court determines that it lacks jurisdiction, it is obliged to immediately down its tools. Jurisdiction being fundamental, a court of law must, at all times, satisfy itself that it is properly seized of the matter before it. 9It was submitted that Section 88 of the Criminal Procedure Code provides that:(1)A magistrate trying a case may permit the prosecution to be conducted by any person, but no person other than a public prosecutor or other officer generally or specially authorized by the Director of Public Prosecutions in this behalf shall be entitled to do so without permission. 10.It further submitted that it was evident from the foregoing provision that an application for leave to institute a private prosecution in criminal matters lies within the purview of a magistrate’s court. The magistrate is vested with the jurisdiction to assess whether such an application meets the requisite legal threshold. In the present case, the Applicant has moved this Honourable Court seeking leave to institute a private prosecution against the Respondent. They submitted that this Honourable Court is not the proper forum for such an application, as the same falls outside the ambit of Section 88 of the Criminal Procedure Code. 11.It was further submitted that Section 88 expressly donates jurisdiction to the magistrate’s court to consider and grant leave for private prosecutions. There is no provision within the said section that confers similar jurisdiction upon the High Court in the first instance. This position was affirmed by the High Court in Isaac Aluoch Polo Aluochier v Stephen Kalonzo Musyoka & 218 Others [2013] eKLR, where it was held that:The law required, and I believe still requires, that a party should approach the Magistrate’s Court under the provisions of section 88 of the Criminal Procedure Code to permit him or her to carry out the prosecution. The Court has in various decisions in the past set out what is required for a party to be permitted to carry out a prosecution, which is now the constitutional responsibility of the ODPP and formerly, the AG. 12.The Respondent argued that the Criminal Procedure Code does not confer jurisdiction upon the High Court to entertain applications for leave to institute private prosecutions in the first instance. The determination of such a question is expressly reserved for the magistrate’s court under Section 88 of the Criminal Procedure Code, which the Applicant herein has relied upon. 13.That in this regard, the proper forum for the determination of an application for leave to institute a private prosecution is the magistrate’s court, and not this Court. The statutory framework is clear and does not admit of any alternative interpretation that would vest original jurisdiction in the High Court for such applications. 14.In further support of the foregoing position on jurisdiction, the Respondent placed reliance on the case of Speaker of the National Assembly v James Njenga Karume [1992] eKLR, where the Court emphatically held that where there exists a clear procedure for the redress of a particular grievance prescribed by the Constitution or an Act of Parliament, that procedure must be strictly followed. 15.The Respondent contended that the import of the above authority is clear, a court vested with original jurisdiction in certain matters and supervisory and/or appellate jurisdiction in others cannot, by virtue of its supervisory or appellate jurisdiction, usurp the original jurisdiction of other fora. 16.In regarding to the second ground of objection, the Respondent submitted that, Article 157 of the Constitution vests the State powers of prosecution in the Director of Public Prosecutions (DPP), a position that is reiterated under Section 5 of the Office of the Director of Public Prosecutions Act. In the exercise of this mandate, the DPP operates independently and is not subject to the direction or control of any person, body, or authority, as expressly provided under Article 157(10) of the Constitution. 17.It is further submitted that Article 157(6) of the Constitution provides that the DPP shall exercise State powers of prosecution, including the power to institute and undertake criminal proceedings, as well as to discontinue, at any stage before judgment is delivered, any criminal proceedings instituted by the DPP or taken over by the DPP. However, pursuant to Article 157(8) of the Constitution, the DPP may not discontinue a prosecution without the permission of the Court. 18.Additionally, it was submitted that this constitutional position is further buttressed by Section 87(a) of the Criminal Procedure Code, which provides that in a trial before a subordinate court, a public prosecutor may, with the consent of the Court or on the instructions of the DPP, at any time before judgment is pronounced, withdraw from the prosecution of any person. Where such withdrawal is effected before the accused is called upon to make his defence, the accused shall be discharged; however, such discharge does not operate as a bar to subsequent proceedings against the accused on the same facts. 19.The Respondent cited the case of Ahmed Rashid Jabril & another v Director of Public Prosecutions [2020] eKLR, to support its position that the DPP has both the legal and constitutional mandate to withdraw criminal proceedings instituted by itself or taken over by it. The Court, however, underscored that such withdrawal is subject to the approval of the Court, in line with the requirements of Article 157(8) of the Constitution. 20.The court was urged to find and hold that it lacks the requisite jurisdiction to entertain the Applicant’s application for leave to institute private prosecution, the same being a matter reserved in the first instance for determination by the magistrate’s court under Section 88 of the Criminal Procedure Code. 21.The Respondent further prayed that the Applicant’s application be struck out for want of jurisdiction, with costs to the Respondent, as the same has been improperly before this Court and offends the clear statutory and constitutional framework governing jurisdiction and prosecutorial authority. 22.The Applicant in the submissions dated 8th June 2026 argued that Section 88 of the Criminal Procedure Code provides inter alia that :(1)A magistrate trying a case may permit the prosecution to be conducted by any person, but no person other than a public prosecutor or other officer generally or specially authorized by the Director of Public Prosecutions in this behalf shall be entitled to do so without permission.(2)Any such person or officer shall have the same power of withdrawing from the prosecution as is provided bysection 87, and the provisions of that section shall apply to withdrawal by that person or officer.(3)Any person conducting the prosecution may do so personally or by an advocate.That the section stated herein is not applicable for the reasons that;i.The section cited by the respondent herein is not coached in mandatory terms.ii.The prayer for the private prosecution cannot be dealt with at this stage for the reason that the prayer for private prosecution is the 4th prayer and the same is dependent on the court granting the prayer 2 and 3 setting aside the order withdrawing the criminal matters.iii.The application for private prosecution could not be filed before the trial court as the cases in question were withdrawn and as such the trial court cannot preside over an application of this nature in a file that had already been closed. 23.It was submitted that it was not practical to expect the applicant to file an application for private prosecution in a file that has been closed. 24.That given the nature of the application herein, the same cannot be filed before the magistrate court or the trial court. 25.Further it was submitted that Article 157 (11) of the Constitution of Kenya 2010 states inter alia that;11.In exercising the powers conferred by this Article, 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.12.Parliament may enact legislation conferring powers of prosecution on authorities other than the Director of Public Prosecutions. 26.That pursuant to the provision cited above, parliament enacted the Criminal Procedure Code, which stipulates that a party can apply for private prosecution and that they can apply for review. 27.Further that the reason as to why the Applicant came before court is because Article 157 (11) was infringed. 28.The Applicant urged the court to dismiss the preliminary objection with costs to the Applicant as it was not merited. Analysis and Determination 29.Having considered the Preliminary Objection and the submissions by the respective parties, the court is to determine whether the Respondent has satisfied the court for the orders to strike out the application herein for want of jurisdiction. 30.Under Kenyan law, leave to conduct a private prosecution is sought before the trial magistrate's court that has original jurisdiction to try the offence, not before the High Court. 31.The legal basis is Section 88(1) of the Criminal Procedure Code, which provides:"A magistrate trying a case may permit the prosecution to be conducted by any person..." 32.The provision expressly vests the power to grant permission in the magistrate trying the case. 33.In Isaac Aluoch Polo Aluochier v Stephen Kalonzo Musyoka & 218 Others [2013] eKLR, the Court stated that a party seeking to undertake a private prosecution should approach the Magistrate's Court under Section 88 of the Criminal Procedure Code. 34.The High Court does not ordinarily exercise original jurisdiction to grant leave for a private prosecution. Its role is generally limited to exercising revisionary jurisdiction under Sections 362–364 of the Criminal Procedure Code; exercise of supervisory jurisdiction under Article 165(6) and (7) of the Constitution; or hearing appeals where a decision has already been made by the subordinate court. 35.The fact that a criminal case has been withdrawn under Section 87(a) of the Criminal Procedure Code does not, by itself, transfer jurisdiction to the High Court to grant leave for private prosecution. 36.If the applicant first seeks to set aside the withdrawal through revision or another lawful procedure; and have the criminal proceedings reinstated, then, once the matter is properly before the trial court, an application under Section 88 may be made before that court for permission to conduct the prosecution. 37.The preliminary objection argues that Section 88 confers jurisdiction exclusively on the magistrate; the offences are triable by the Chief Magistrate's Court and therefore, the High Court lacks original jurisdiction to grant leave for private prosecution. 38.The Applicant responds that the prayer for private prosecution is merely consequential upon first setting aside the withdrawal orders and reinstating the criminal cases, and that because the files had been closed there was no forum before the trial court to seek leave. 39.This court therefore finds that it has jurisdiction to consider the prayer for revision of the withdrawal orders but it does not have original jurisdiction to grant leave for private prosecution under Section 88 of the Criminal Procedure Code. 40.In the event that application for revision is heard and the withdrawal orders are set aside and the criminal cases reinstated, the applicant should then move the trial magistrate's court for leave to conduct the private prosecution. 41.Accordingly, the Respondent's objection on the Section 88 issue is successful but it does not dispose the entire application seeking revision of the withdrawal orders. The preliminary objection is therefore overruled with no orders as to costs. The Applicant’s application should be set down for hearing and determination. 42.It is so ordered. DATED, SIGNED AND DELIVERED AT MIGORI, THIS 16TH DAY OF JULY, 2026.ANNE C.A. ONG'INJOJUDGEIn the Presence ofVictor/ Calvins – Court AssistantsApplicant –Respondent –