Director of Public Prosecution v Mwangaza & 4 others (Criminal Appeal E041 of 2025) [2026] KEHC 13132 (KLR) (15 July 2026) (Judgment)

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT MERU** **CRIMINAL APPEAL NO E041 OF 2025** **D.K. RONO, J** **15 JULY 2026** **DIRECTOR OF PUBLIC PROSECUTION…………………..………APPEALLANT** **AND** **KAWIRA MWANGAZA………………………………………….1ST RESPONDENT** **DIRECTOR OF CRIMINAL INVESTIGATIONS…………….2ND RESPONDENT** **ETHICS AND ANTI-CORRUPTION COMMISSION………….3RD RESPONDENT** **NATIONAL COHESION AND INTEGRATION COMMISSION…………………………………………………4THRESPONDENT** **LAURENCE MPURU ABURI……………………………………..5TH RESPONDENT** *Being an Appeal against the Ruling of the Chief Magistrate's Court at Meru (Hon. Atiang* *Mitullah, CM) delivered on 11th June 2025 in Kawira Mwangaza v. DPP & 4 Others (Meru Chief Magistrate's Miscellaneous Criminal Application No.172 of 2024)]* **JUDGEMENT** 1. The genesis of these proceedings lies in a series of utterances allegedly made by the 5th Respondent, Hon. Laurence Mpuru Aburi, the Member of Parliament for Tigania East Constituency, during various public gatherings and through social media platforms between January 2023 and October 2023. The impugned utterances were directed at the 1st Respondent, who was then serving as the Governor of Meru County. 2. Following the said utterances, the 1st Respondent filed an application before the Chief Magistrate’s Court seeking leave to institute a private prosecution against the 5th Respondent. The application set out numerous statements attributed to the 5th Respondent which, according to the 1st Respondent, amounted to publication of false information, cyber harassment, hate speech and conduct calculated to cause a breach of peace. The alleged offending statements were particularised, translated into English and placed within the context in which they were allegedly made. 3. The 1st Respondent contended that the statements were sexually degrading, demeaning, inflammatory and intended to ridicule, humiliate and incite members of the public against her. She maintained that the utterances went beyond political criticism and constituted criminal conduct prohibited under Kenyan law. 4. The application further alleged that the conduct of the 5th Respondent disclosed offences under, inter alia, the Computer Misuse and Cybercrimes Act, the National Cohesion and Integration Act, the Penal Code, the Leadership and Integrity Act and other applicable legislation. The application was premised on Articles 10, 27, 29, 48, 50 and 157 of the Constitution, Sections 88 and 89 of the Criminal Procedure Code, Section 28 of the Office of the Director of Public Prosecutions Act and other enabling provisions of the law. 5. The application was opposed by the Appellant and the Respondents, who filed affidavits in opposition. Upon considering the pleadings, affidavits, submissions and applicable law, the learned Chief Magistrate delivered a ruling on 11th June 2025 allowing the application and granting the 1st Respondent leave to institute a private prosecution against the 5th Respondent. 6. Aggrieved by that decision, the Director of Public Prosecutions lodged the present appeal raising four grounds of appeal. The Appellant contended, inter alia, that the learned trial magistrate erred in law and fact by misapprehending the legal framework governing private prosecutions in Kenya; by finding that the 1st Respondent had met the threshold for grant of leave; by holding that there had been delay or inaction on the part of the Appellant despite the investigations allegedly not having been concluded; and by placing undue reliance on the alleged offensive statements without considering the totality of the evidence. 7. The Appellant urged this Court to find that the 1st Respondent had failed to meet the threshold for grant of leave to institute private prosecution, allow the appeal and set aside the decision of the learned trial magistrate. 8. The parties filed written submissions pursuant to directions issued by this Court. The submissions have been carefully considered. It is unnecessary to reproduce them verbatim, as the same shall be addressed in the determination of the issues arising. 9. Having considered the record of appeal, the pleadings and the submissions by the parties, this Court is of the view that the following issues arise for determination: 10. Whether the 1st Respondent satisfied the legal threshold for grant of leave to institute a private prosecution against the 5th Respondent. 11. Whether the learned trial magistrate properly exercised her discretion in granting leave and, consequently, whether the appeal is merited. 12. Before considering the merits of the appeal, it is necessary to restate the duty of this Court as a first appellate court. This Court is required to reconsider and re-evaluate the evidence placed before the trial court and arrive at its own independent conclusions, while bearing in mind that it did not have the benefit of seeing and hearing the witnesses. 13. In **Selle & Another v Associated Motor Boat Company Ltd & Others [1968] EA 123**, the Court of Appeal stated that a first appellate court has a duty to examine the evidence afresh, analyse it and reach its own conclusions, although it must give due allowance to the fact that the trial court had the advantage of observing the witnesses. 14. Similarly, in **Peters v Sunday Post Ltd [1958] EA 424**, the Court held that an appellate court will not ordinarily interfere with the exercise of discretion by a trial court unless it is satisfied that the court acted on wrong principles, took into account irrelevant matters, failed to consider relevant matters, or arrived at a conclusion that was plainly wrong. 15. It is against this standard that the decision of the learned Chief Magistrate falls to be examined. 16. Article 157 of the Constitution establishes the Office of the Director of Public Prosecutions and confers upon the DPP the power to institute and undertake criminal proceedings. 17. Article 157(6) provides: “The Director of Public Prosecutions shall exercise State powers of prosecution and may institute and undertake criminal proceedings against any person before any court…” 18. The constitutional mandate of the DPP is further protected by Article 157(10), which provides: “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.” 1. The effect of this provision is that prosecutorial decision-making is constitutionally entrusted to the DPP and is not subject to direction or control by any person or institution. The decision whether to institute criminal proceedings is therefore ordinarily within the exclusive mandate of the DPP, provided that such discretion is exercised in accordance with the Constitution and the law. 2. However, Article 157(11) requires the DPP, in exercising prosecutorial powers, to have regard to the principles of public interest, the interests of the administration of justice and the need to prevent abuse of legal process. 3. While courts cannot compel the DPP to prosecute a particular person or substitute their assessment of evidence for that of the DPP, judicial intervention is permissible where there is demonstrated illegality, irrationality, abuse of power, unreasonable delay or failure to discharge a constitutional obligation. 4. The constitutional scheme therefore requires a careful balance that safeguards the independence of the DPP while ensuring that prosecutorial discretion is not exercised in a manner that defeats access to justice or renders constitutional rights ineffective. 5. Section 28 of the Office of the Director of Public Prosecutions Act recognises the institution of private prosecution in appropriate circumstances. Similarly, Section 88 of the Criminal Procedure Code empowers a subordinate court to permit a private person to conduct a prosecution upon satisfying itself that the applicant has sufficient basis to do so. 6. The right to institute a private prosecution is, however, not automatic. It is an exceptional remedy intended to serve as a safeguard against failure of the criminal justice system, and not as an alternative avenue for individuals dissatisfied with prosecutorial decisions. 7. In **Floriculture International Limited & Others v Attorney General & Others**, the Court set out the principles governing grant of leave to institute private prosecution. An applicant must demonstrate: 8. that a complaint was made to the relevant authorities and a reasonable opportunity was given for investigation; 9. that the prosecutorial authorities were seized of the matter but failed, neglected or declined to act; 10. that such failure amounted to unreasonable or culpable inaction; 11. that the applicant suffered a special or personal injury distinct from that suffered by the general public; and 12. that the intended prosecution is being pursued in good faith. 13. These principles ensure that private prosecution remains a constitutional safeguard rather than a parallel prosecutorial system. **Analysis and determination** **Whether the 1st Respondent satisfied the threshold for leave to institute private prosecution** 1. In determining whether the trial court made an error in the grant of leave for institution of private prosecution, this court will test the decision against the rubric set out in *Floriculture decision (supra)* in answering the first issue for determination, it would be important to deal with 1. *Whether a complaint was made and reasonable opportunity given for investigation* 2. The evidence on record demonstrates that the 1st Respondent did not immediately resort to private prosecution. She first invoked the ordinary criminal justice mechanisms by lodging complaints with the relevant investigative authorities. 3. The complaint was made on 11th December 2023. Investigations were subsequently undertaken by the Ethics and Anti-Corruption Commission (EACC) and the National Cohesion and Integration Commission (NCIC). The record indicates that by October 2024, investigations had substantially progressed and reports had been prepared. 4. The fact that investigations had commenced did not, by itself, absolve the prosecutorial authorities from making a timely decision. While prosecutorial decisions require careful evaluation of evidence, such discretion must be exercised within a reasonable period and consistently with Article 157(11) of the Constitution. 5. The relevant question is therefore not whether investigations commenced, but whether the period taken before a prosecutorial decision was reached was reasonable in the circumstances. 6. *Whether there was failure or refusal to prosecute* 7. The Appellant contends that there was no failure to act because investigations were incomplete. The 1st Respondent argues that despite the authorities having been seized of the matter, no decision had been communicated and no charges had been preferred. 8. The Court must distinguish between legitimate prosecutorial caution and unreasonable administrative delay. The independence of the DPP protects lawful prosecutorial discretion; it does not shield unexplained inaction where constitutional obligations remain unfulfilled. 9. In the present case, the complaint had remained unresolved for approximately eighteen months by the time the trial court delivered its ruling. The investigative agencies had already undertaken substantial investigations and generated material touching on the allegations. 10. The EACC report presented before the trial court recognised that the allegations raised concerns relating to sexual harassment and hate speech. Although such findings do not automatically compel prosecution, they were relevant in assessing whether the absence of a prosecutorial decision was justified. 11. In the circumstances, the learned magistrate was entitled to conclude that the prolonged absence of a decision amounted to unreasonable delay sufficient to justify recourse to private prosecution. 12. *Whether the 1st Respondent suffered special injury* 13. In the present case, the alleged statements were specifically directed at the 1st Respondent and related to her dignity, reputation, sexuality and personal attributes. 14. The alleged injury was therefore personal and distinct. The complaint was not merely that an offence had been committed against society generally, but that the 1st Respondent herself had suffered individual harm. 15. The learned trial magistrate therefore cannot be faulted for finding that the requirement of special injury had been met. 16. *Whether the application was made in good faith* 17. The Appellant contended that the proceedings were politically motivated. However, the existence of political rivalry does not, without more, establish bad faith. The record demonstrates that the 1st Respondent first pursued institutional remedies before approaching the court. The application for private prosecution was therefore not the first avenue adopted but followed perceived failure by the relevant authorities to act. 18. There was no evidence before the trial court demonstrating that the application was brought for an improper purpose or intended merely to harass the 5th Respondent. 19. *Whether the learned trial magistrate properly exercised discretion* 20. The grant of leave to institute private prosecution involves judicial discretion. Such discretion must be exercised judiciously and based on relevant considerations. 21. Upon re-evaluation of the record, this Court finds that the learned magistrate considered the relevant factors, including the existence of the complaint, investigative steps undertaken, the delay in prosecutorial action, the personal nature of the alleged injury and the interests of justice. 22. The trial court did not determine that the 5th Respondent was guilty of any offence. That question remains reserved for determination in the criminal trial, should the prosecution proceed. 23. The issue before the trial court was limited to whether the circumstances justified granting the 1st Respondent access to the criminal justice process through the exceptional mechanism of private prosecution. 24. The learned magistrate did not usurp the constitutional mandate of the DPP. Rather, it exercised the limited judicial role contemplated under the law to ensure that access to justice was not defeated by prolonged inaction. 25. Having independently reconsidered the evidence and the applicable legal principles, this Court finds that the 1st Respondent satisfied the threshold for the grant of leave to institute private prosecution. 26. This Court therefore finds no basis upon which to interfere with the exercise of discretion by the learned Chief Magistrate. 27. Consequently, the Court makes the following orders; 28. The appeal by the Director of Public Prosecutions is hereby dismissed. 29. The ruling of the Chief Magistrate’s Court at Meru delivered on 11th June 2025 granting leave to the 1st Respondent to institute private prosecution against the 5th Respondent is hereby affirmed. DATED, SIGNED AND DELIVERED VIRTUALLY AT MERU THIS DAY 15TH OF JULY 2026. **DK RONO** **JUDGE**