https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11923

REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT KISUMU CRIMINAL DIVISION CRIMINAL REVISION NO. E356 OF 2025 ELVIS AYIEMBA ............................................................................. APPLICANT REPUBLIC ................................................................................... RESPONDENT - VERSUS - R U L I N G O N R E V I S I O N 1. ELVIS AYIEMBA (“the applicant”) was on 26/8/2024 arraigned before the Principal Magistrate’s Court Maseno and charged with the offence of Forcible Detainer contrary to section 91 of the Penal Code. 2. It was alleged that on diverse dates between 8/7/2021 and 18/7/2024, at Lower Kadongo Village within Kisumu West Sub-County in Kisumu County, being in possession of Plot No. Ksm/Kadongo/541 of Ouko Zedekiah Ahono, without colour of light, the applicant held possession of the said land in a manner likely to cause breach of the peace, against Ouko Zedekiah Ahono who was entitled by law to the possession of the said land. 3. By a Motion on Notice dated 14/11/2025, the applicant applied to this Court for the revision of the trial court’s decision to continue with the prosecution in Maseno SPMCR Case No. E333 of 2024 – Republic vs Elvis Ayiemba. The Page 1 of 5 grounds for the Motion were set in the body thereof and the supporting affidavit of Cynthia Mariam Ohayo sworn on even date. 4. The grounds were that the applicant was lawfully in possession of the subject property. One Ouko Zedekiah Ahono (“the complainant”) unlawfully obtained title from persons who had wrongly claimed title through Succession Cause No. Ksm E052 of 2020. That the grant in that Cause was revoked on 6/8/2024 and therefore the title of the complainant cannot stand. That the advocate for the applicant had written to the Director of Public Prosecutions who by a letter dated 14/4/2025 had advised against proceeding with the prosecution of the applicant. That despite as aforesaid, one Elvira Aseda, the Maseno Prosecution Counsel decided to ignore that directive and asked the Court to proceed with the prosecution. 5. That due to the suspect nature of the title of the complainant, the prosecution was being maliciously mounted by the said prosecutor against the applicant. It was therefore urged that the trial court’s decision to continue with the criminal case be reviewed. 6. The State participated but did not file any documents. Ms. Kagali, Prosecution Counsel supported the contestations made by the complainant/victim. 7. The complainant filed Grounds of Opposition dated 3/8/2026 and submissions of the same date. The same was to the effect that the application was bad in law as this Court lacks powers to supervise the DPP under Article 165 and sections Page 2 of 5 362 and 364 of the Criminal procedure Code. That the Court cannot interfere with DPP’s exercise of his functions under Article 157 of the Constitution. That the decision being questioned was taken by DPP and not the trial court. 8. I have considered the rival contestations. This is an application for revision. The powers of this Court for revision is to be found in sections 362 and 364 of the Criminal Procedure Code which provides that: - “362. 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. 364. (1) In the case of a proceeding in a subordinate court the record of which has been called for or which has been reported for orders, or which otherwise comes to its knowledge, the High Court may— (a) in the case of a conviction, exercise any of the powers conferred on it as a court of appeal by sections 354, 357 and 358, and may enhance the sentence; (b) in the case of any other order other than an order of acquittal, alter or reverse the order. Page 3 of 5 ....” 9. Clearly, from the foregoing, the jurisdiction donated by the aforesaid provisions is for this Court to look at whether the impugned proceedings or orders are regular or lawful. If there be any irregularity or illegality, then this Court’s jurisdiction attaches and a revision order will follow as a matter of cause. 10. Before delving to the issue at hand, I should point out here that the contention by the victim that this Court has no jurisdiction to supervise the DPP is wrong. In an appropriate case where the DPP is not exercising his powers under Article 157 in accordance with the Constitution and Law, this Court has jurisdiction to intervene and make appropriate orders. 11. Having stated so, what is the case at hand? This Court has been asked to set aside the trial court’s decision of accepting a Prosecutor’s insistence to proceed with the prosecution of the applicant. 12.The decision to charge lies with the DPP. The DPP acts through his Prosecution Counsels across various courts in the Country. The contention here is that the ADPP Head of Land and Environment Division had advised against continuing with the prosecution, but that the Maseno Prosecutor had insisted in proceeding with the prosecution. That may be the case. The Prosecutor who has the case is the one at Maseno and not the Head of Land and Environment Division at the Headquarters. If the Prosecutor at Maseno had insubordinated her superior, that Page 4 of 5 is an internal issue with the office of the DPP. It has no legal angle on the criminal trial before the trial court. 13.The jurisdiction of this Court under sections 362 and 364 of the Criminal Procedure Code does not extend to this Court reviewing the decision of a Prosecutor. It is only directed at a subordinate court. In the present case, the trial court could not question the decision of the Prosecutor who had presented the charge sheet before it. 14.Although the grant from which the alleged title of the complainant had emanated had been revoked, there was no evidence that the same had been cancelled. The question of whether the complainant has the title to the subject land or not is to be determined by the trial court, not this Court. If the applicant finally succeeds, then he will have recourse against those who wrongly prosecuted him but not before this Court through revision. 15.Accordingly, the application for revision is without merit and is hereby dismissed. The original files be returned to the trial court. It is so ordered. DATED and DELIVERED at Kisumu this 31st day of July, 2026. A. MABEYA, FCI Arb JUDGE Page 5 of 5