[2008] KEHC 3927 (KLR)

[2008] KEHC 3927 (KLR)

The High Court held that while the prosecution by an unqualified person was a valid reason for terminating the proceedings, the use of a Nolle Prosequi at the defence stage was inappropriate and amounted to an abuse of process. The court found that the Attorney General's action was oppressive and in derogation of the applicant's right to a fair and expeditious trial, especially given the protracted nature of the proceedings and the risk of a retrial after six years. The court emphasized that the proper procedure would have been to use section 87(b) of the Criminal Procedure Code, which would have resulted in an acquittal, rather than a Nolle Prosequi, which leaves the applicant exposed to...

Citation
[2008] KEHC 3927 (KLR)
Parties
Applicant: George Gitau Wainaina; Respondent: Attorney General
Court
High Court
Court Station
High Court at Nairobi (Milimani Law Courts)
Jurisdiction
Kenya
Judgment Date
22 July 2008
Case Number
? 68 of 2003
Procedural Posture
Constitutional Reference / Ruling on Reference From Subordinate Court Under Section 67(1) of the Constitution
Outcome
Nolle Prosequi rejected; prosecution to elect appropriate procedure.
Legal Topics
Nolle Prosequi, Fair Trial Rights, Prosecutorial Discretion, Abuse of Process, Public Prosecution, Judicial Review
Source Language
English
Criminal Law Constitutional Law Nolle Prosequi Fair Trial Rights Prosecutorial Discretion Abuse of Process Public Prosecution Judicial Review

Case Brief

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Parties

George Gitau Wainaina

Applicant

Attorney General

Respondent

Procedural Posture

Constitutional Reference / Ruling on Reference From Subordinate Court Under Section 67(1) of the Constitution

Legal Issues

  1. 1 Whether the Attorney General must give reasons for seeking to enter a Nolle Prosequi.
  2. 2 Whether the prosecution by an unqualified person is a valid reason for entering a Nolle Prosequi.
  3. 3 Whether entering a Nolle Prosequi at the defence stage constitutes an abuse of due process.

Ratio Decidendi

The High Court held that while the prosecution by an unqualified person was a valid reason for terminating the proceedings, the use of a Nolle Prosequi at the defence stage was inappropriate and amounted to an abuse of process. The court found that the Attorney General's action was oppressive and in derogation of the applicant's right to a fair and expeditious trial, especially given the protracted nature of the proceedings and the risk of a retrial after six years. The court emphasized that the proper procedure would have been to use section 87(b) of the Criminal Procedure Code, which would have resulted in an acquittal, rather than a Nolle Prosequi, which leaves the applicant exposed to...

Court Disposition

Nolle Prosequi rejected; prosecution to elect appropriate procedure.

Orders

  • The trial court is directed to reject the Nolle Prosequi presented on 24.09.03.
  • The prosecution is to elect another appropriate mode of handling the pending case.