https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10178

Kipng’etich & another v Director of Public Prosecution (Criminal Review E202 of 2025) [2026] KEHC 10178 (KLR) (9 July 2026) (Ruling) Neutral citation: [2026] KEHC 10178 (KLR) Republic of Kenya In the High Court at Eldoret Criminal Review E202 of 2025 E Ominde, J July 9, 2026 Between Francis Kibet Kipng’Etich 1st Applicant Robert Kipkemboi Kibet 2nd Applicant and Director of Public Prosecution Respondent Ruling 1.Before this Court for determination is the Applicants Notice of Motion dated 6th August 2025, brought pursuant to Section 362 of the Criminal Procedure Code. The Applicants seek the following orders:1.Spent.2.That the Honorable Court be pleased to review or set aside the orders and Ruling of Hon. Onkoba Mogire (SPM) delivered on 23rd July 2025 in Eldoret CMCR No. E814 of 2025 Republic v Sylvester Kiplagat Kibet & Another allowing the withdrawal of the suit under Section 87(a) of the Criminal Procedure Code.3.Spent.4.Spent.5.That the costs of this application be provided for. 2.The Application is supported by the Affidavit sworn by the 1st Applicant on 6th August 2025 wherein the Applicant deposes that on 22nd April 2025, his brother the 2nd Applicant and him were assaulted by Sylvester Kiplagat Kibet and Stephen Kimeli Kibet and that they sustained actual bodily harm as a result. That they reported the assault at Naiberi Police Station under OB Number 13/23/04/2025. 3.The 1st Applicant further deposed that upon reporting, the police did their investigations and opened police file Case No. CR 895/30/2025 and the same was forwarded to the Director of Public Prosecutions for directions as to whether to the suspects should be charged with the offence of assault. 4.That Sylvester Kiplagat Kibet and Stephen Kimeli Kibet were subsequently charged with the offence of Assault Causing Actual Bodily Harm contrary to Section 251 of the Penal Code in Criminal Case No. E814 of 2015; Republic Vs. Sylvester Kiplagat Kibet & Another. That later however, the two Applicants were also charged with offence of assault in Criminal Case No. E1224 of 2025; Republic Vs. Francis Kibet Kipng’etich and Another, where the accused in Criminal Case No. E814 of 2025 are the complainants. 5.The 1st Applicant stated that the complainants in Criminal Cases No. E1224 of 2025 were issued with OB No. 32/23/4/2025 after they reported as can be seen from their OB No. 13/23/04/2025 which was issued earlier issued and that Criminal Case No. 814/2025 wherein they are the complaints was commenced before Criminal Case No. E1224/2025 in which the Respondents are the complainants. 6.The 1st Applicant further deposed that when Criminal Case No. E814/2025 came up for hearing on 23rd July 2025 to their surprise the Prosecutor Mr. Onjoro made an oral application stating that he intended to withdraw the charges under Section 87 of the Criminal Procedure Code. 7.That Mr. Onjoro informed the Court that the decision to withdraw the charges was because Prosecution had reviewed the decision to charge after perusing the Police file with respect to Criminal Case No. E814/2025 alongside the Police file with respect to Criminal Case No. E1224/2025 and it became clear that the same were meant to defeat the charges in Criminal Case No. E1224/2025. 8.The Applicant deposed that with this decision, Mr. Onjoro who was meant to protect them as victims of an assault decided to dine with the accused persons. He further contended that they were never informed prior by the Prosecutor that he is was going to withdraw the charges against the accused persons, that they were also never informed when the review of charges was done and the decision to withdraw the charges made. 9.That from the reasons given by Mr. Onjoro the said decision smacks of impunity, corruption and abuse of office because they are the ones who had had reported their matter first and that their matter was therefore to commence first. That further, the argument by Mr. Onjoro that Criminal Case E814/2025 was commenced to defeat Criminal Case No. E1224 of 2025 defeats logic as it is clear that the withdrawal was an affront to justice, illegal and contrary to public interest. 10.The 1st Applicant maintained that despite the fact that under Article 157(6) of the Constitution, the Prosecution has the power to discontinue any charges before judgment is delivered in criminal proceedings, those powers are not absolute and are subject to Article 157(11) of the Constitution. Response 11.The Application is opposed by the Respondent vide the Replying Affidavit sworn by Prosecution Counsel, S.G. Thuo, dated 8th August 2025. He urged that the Applicants herein are alleging grave allegations of breach of Constitutional provision under Article 157 of the Constitution against a Public Prosecutor exercising his constitutional mandate without providing any tangible evidence contrary to the norm that he who alleges must prove. 12.He deposed that the Applicants have not demonstrated any grain of proof that the aforesaid officer violated public interest, the administration of justice and/ or abuse of the legal process. He further deposed that this Court is deliberately being misled by the misinformation of the Applicants that the first to report an incident with police are first in right. Submissions 13.The Application was canvassed by way of written submissions. The Applicants filed submissions dated 14th November 2025 whereas the Respondent opted not to file any. The court shall therefore make its determination on the basis of the facts deposed in the Replying Affidavit. Applicants’ Submissions 14.On the court’s power of review, Counsel for the Applicants cited Section 362, 364 (1) (b) and 367 of the Criminal Procedure Code, as well as Article 165(6) and (7) Constitution of Kenya 2010. Counsel cited Article 157(6), (7), (10) (ii) of the Constitution with regard to the powers of the Director of Public Prosecution and also Section 6 of the Office of Director of Public Prosecution Act. 15.He relied on the case of Justus Mwenda Kathenge v Director of Public Prosecution & 2 Others [2014] eKLR which set out the circumstances under which the exercise of the ODPP of his constitutional mandate as provided under Article 157 of the Constitution can be interfered with and further submitted that these considerations are not new and have over time been taken as the only bar the exercise of discretion on the part of the 1st Respondent. 16.With regard to the powers of the Director of Public Prosecution, Counsel submitted that the Constitution under Article 157 (6), (7), (8), (10) and (11) vest him with express powers to prosecute all Criminal cases on behalf of the state and that he has the power to initiate, take down, continue or choose to discontinue any criminal prosecution before a court of law. Counsel added that the constitutional and statutory responsibility to discharge any of these functions squarely rests with the Director of Public prosecution. 17.Counsel urged that this consideration to initiate or discontinue a criminal proceeding is only weighed against the broader doctrine of Justice for the Public. Counsel pointed out that an important element of the power to initiate, undertake or withdrawal any criminal proceedings by prosecution is to ensure justice is not only seen to be done but that justice is not done in the matter(sic). 18.Counsel highlighted that in this contest Section 87 (a) of the Criminal Procedure Code which is relevant to this application permits the prosecution to apply before the court seized of the case to withdraw the charge or charges facing an accused person at any time before final judgment and that this power is deemed to be exercised in the interest of the administration of justice and to avoid abuse of the process. 19.Counsel submitted that the essential character of the office of the Director of Public Prosecution under Article 157 of the Constitution is that in exercise of its power, the principle of independences is guaranteed and availed to the office. That however, while making a decision under Section 87 (a) (b) of the Criminal Procedure Code the court has to consider whether the withdrawal will lead to conflict with the constitution. 20.That from the foregoing there are exceptional circumstances where the court will interfere with or check the power of the Director of Public Prosecution to withdraw cases and such circumstances include situations where the Director of Public Prosecution Acts improperly not for the interest of justice, goes beyond the powers vested by the Constitution or carries out some arbitrary objectives under the guise of discharging the function of the office of prosecution. He relied on the case of Anne Wanja v Republic [2022] eKLR. 21.Counsel further submitted that the role of victim in Criminal proceedings has to be taken into consideration. He cited Section 9 of the Victim Protection Act, 2014 on the rights of a victim during the trial process and also Section 2 of the same Act on the definition of a “victim.” He further relied on the case Republic Vs Sammy (Criminal Case No. 36 of 2019) [2022] KECHC 195 (KLR). Guided by the said decision, Counsel submitted that a victim /complainant is part of the proceedings and that with the enactment of the Victim Protection Act, the victim plays a vital role in the proceeding and that the Applicants herein, being the complainants were not mere spectators but key parties in the proceedings. 22.Counsel observed that when this matter came up for hearing on the 23rd July 2025, though the complainants were represented by Counsel, their view was not taken nor the views of the complainants. That it should be noted that the complainants though present in court were never notified by the prosecution that it intended to withdraw the matter nor did the prosecution inform their Counsel on record of that intent. Counsel argued that Mr. Onjoro waited until when the matter was called out and to the surprise of the complainants he informed the court that he intends to withdraw the matter. 23.Counsel therefore maintained that there was no participation of the complainant nor their Advocate before the Court arrived at the decision to withdraw the case and further asserted that the Applicants were not given an opportunity to participate before withdrawal of the case under Section 87(a) of the Criminal Procedure Code and that the reason advanced by Mr. Onjoro were contrary to the guidelines on the decision to charge, 2019. 24.Counsel maintained that the decision to charge was made by one Meshack K.R Rop who having satisfied himself that there was compliance with guidelines on the decision to Charge, 2019 proceeded to sign the charge sheet on the offence of assault against the accused. Counsel therefore urged that the reason given by Mr. Onjoro that the complaint made by the Applicants was made to defeat the charges in Criminal Case No. E1224 of 2025 was a deliberate act of aiding the accused in Criminal Case No. E814 of 205 hence breaching the trust that is bestowed upon the Director of Public Prosecution by taking side which is contrary to public interest and Chapter 10 of the Constitution on how Public Officers should conduct themselves while undertaking their duty 25.Counsel further submitted that when it comes to reviewing of the decision to charge there has to be compliance with Clause 4.6 of the Guidelines on the decision to Charge, 2019 which provides thus;“A review can be conducted by a prosecutor seized of /assigned the matter. Supervisors and the performance management team shall, as a matter of practice, compliance and quality control, regularly review decisions to charge. All reviews must be made in consultation with the person who made the initial decision. Where a prosecutor is aware of other matters related to a case under review, the process of review should include and consider all related files. All reviews will be recorded on the Decision to Charge Continuing Review Form (ODPP form 1B) and filed in the internal ODPP file." 26.Counsel submitted that when this matter came to court on the 23rd July 2025, there was no evidence that was tendered by Mr. Onjoro that one Meshack K. Rop who signed the charge sheet was consulted on his decision to charge the accused person nor did he present decision to charge continuing from (ODPP form 1B) to confirm that criminal case No. E1224 of 2025 and Criminal Case No. E1124 of 2025 had been jointly reviewed. Determination 27.The issue that arises for determination in this matter isWhether this court has the power under in the exercise of its revisionary jurisdiction and review as provided under the Constitution and Statute to set aside the impugned orders of Hon. Onkoba Mogire (SPM) allowing the Prosecution’s Application to withdraw the case against the Respondents under Section 87A of the CPC 28.The jurisdiction of the High Court with regard to Revision is supervisory and is provided under the Constitution in Article 165 (6) and (7) in the following terms:“6)The High Court has supervisory jurisdiction over the subordinate courts and over any person, body or authority exercising a judicial or quasi-judicial function, but not over a superior court.(7)For the purposes of clause (6), the High Court may call for the record of any proceedings before any subordinate court or person, body or authority referred to in clause (6), and may make any order or give any direction it considers appropriate to ensure the fair administration of justice.” 29.Section 362 of the Criminal Procedure Code on the other hand provides as follows:“Revision362. Power of High Court to call for recordsThe 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.” 30.The operative phrase in considering Applications for revision is therefore “correctness, legality or propriety” of any finding, sentence or order made by the lower Court. 31.Under the provisions of Article 165(6) and (7) of the Constitution it is not in doubt that the supervisory powers of the High Court over courts tribunals and bodies that are subordinate to it are unlimited. Under Section 362 of the Criminal Procedure Code, the court’s revisionary powers are limited to the purpose of satisfying itself as to the correctness, legality or propriety of any finding, sentence or order of a subordinate court tribunal and/or body that is subordinate to the High Court. In considering these statutory provisions, the question that the court must answer so as to determine whether it has been appropriately moved under the said Section 362 of the Criminal Procedure Code is what is meant by the three key words to wit correctness, legality and propriety to which the mandate of court is confined when its revisionary jurisdiction is invoked. 32.In considering this question, to my mind, a literal and simple understanding of the meaning of the words is the determining factor. Black’s Law Dictionary Tenth Edition defines the term correction as the act or instance of making right what is wrong. It defines legality to mean the quality, state, or condition of being allowed by the law; strict adherence to the law, prescription, or doctrine. propriety simply refers to the correctness of an act. 33.It follows therefore that any act that does not conform to the Constitution and the law, does not fit into the meanings ascribed to the three test phrases as herein defined, does not amount to the proper and/or judicious exercise of discretion where the application of discretion is called for and does not pass the test of reasonableness is a decision that is incorrect, illegal and improper. 34.This being the case then, if the court is satisfied that if it be satisfied that the reasons given in support of the decision to withdraw the charges against the Respondents before the trial Court under Section 87A of the Criminal Procedure Court do not pass the test correctness, legality and propriety as herein defined, because it is common ground that the Learned Magistrate did not interrogate this application, then the revisionary jurisdiction of the court as provided under Section 362 of the Criminal Procedure Code is applicable. 35.This jurisdiction of the High Court was also examined by Odunga J (as he then was) in the case of Joseph Nduvi Mbuvi vs Republic [2019] eKLR wherein the Learned Judge stated as follows:“In my considered view, the object of the revisional jurisdiction of the High Court is to enable the high Court in appropriate cases, whether during the pendency of the proceedings in the subordinate court or at the conclusion of the proceedings to correct manifest irregularities or illegalities and give appropriate directions on the manner in which the trial, if still ongoing, should be proceeded with. In other words, the High Court’s revisionary jurisdiction includes ensuring that where the proceeding in the lower court has been legally derailed, necessary directions are given to bring the same back on track so that the trial proceeds towards its intended destination without hitches. Not only is the jurisdiction exercisable where the subordinate court has made a finding, sentence or order but goes on to state that it is also exercisable to determine the regularity of any proceedings of any such subordinate court as well.” 36.On the other hand, Section 87A of the Criminal Procedure Act under which the Application to withdraw the case was made and allowed provides as follows;“In a trial before a subordinate court a public prosecutor may, with the consent of the court or on the instructions of the Attorney- General*, at any time before Judgment is pronounced, withdraw from the prosecution of any person, and upon withdrawal –a.if it is made before the accused person is called upon to make his defence, he shall be discharged, but discharge of an accused person shall not operate as a bar to subsequent proceedings against him on account of the same facts…” 37.However, under Article 157(6) of the Constitution the power to withdraw subject to the consent of the court and further, Article 157(8) of the Constitution provides that the Director of Public Prosecutions may not discontinue a prosecution without the permission of the court. It is for this reason that in the case of Republic –vs- Fahmi Salim Said [2013] eKLR, Muya J, when faced with a similar situation where the Learned Magistrate made an order of withdrawal under Section 87A of the CPC without interrogating the circumstances under which the order was made, the Learned Judge quipped;“Was the magistrate’s court supposed to be a rubber stamp? Ought not the magistrate interrogate the reasons given by the DPP as to satisfy himself as to whether they answer to the threshold set by the Constitution and in particular Article 157(11)?” 38.In the instant case, the Applicant protests the application to withdraw that was made by the prosecution that was subsequently allowed by the learned Magistrate who then proceeded to discharge the accused persons. It is his contention that this decision was not in accordance with the Constitution and the law. He states that notwithstanding the fact that they were in court with their Counsel who was watching their brief, The Learned Magistrate did not seek their views on the application by the prosecutor and the same notwithstanding proceeded to make the order was made nonetheless. 39.It is this decision by the Learned Magistrate that the Applicants seek that the court reviews because in their view, since the Prosecutor did not at all intimate to them or their Counsel at any time before the court appearance or at all, that he would make the application, they were ambushed with this application in court, on the hearing date notwithstanding the fact that they are the victims in the case. That with the enactment of the Victim Protection Act, under Section 9 thereof, a complainant is a victim and is part of the proceedings and in this regard plays a vital role in the said proceedings and so by virtue of the fact that they are the complainants they were not mere spectators but key parties in the proceedings. Yet, they mater was withdrawn without their views being sought. 40.That in addition to that, there was also no evidence tendered or even an intimation made by the Prosecutor, that before making the decision to withdraw, as required under Clause 4.6 of the Guidelines on the decision to Charge, 2019, he had consulted with the Officer who made the initial decision to charge. That in this regard, the decision to withdraw was arbitrary and contrary to the Constitution and the law. 41.That further, the reasons given by the prosecutor in seeking to withdraw the charges clearly demonstrates that the Prosecutor took sides in the matter with the sole intention of aiding the accused persons and not with the intent to comply with the consideration that the decision to initiate or discontinue a criminal proceeding should only be weighed against the broader need to ensure that the ends of justice are met. 42.That this is because this power is deemed to be exercised in the interest of the administration of justice and to avoid an abuse of the process. That any act by the Director of Public Prosecution that can be construed to be improper and not in the interest of justice, or carries out some arbitrary objectives under the guise of discharging the function of the office of prosecution then is an act goes beyond the powers vested upon the office by the Constitution. 43.It is not in doubt that the powers of the Director of Public Prosecution as vested under Article 157 (6), (7), (8), (10) and (11) of Constitution of Kenya, 2010 to prosecute all criminal cases on behalf of the state. In this regard, the Director of Public Prosecution has the power and mandate under Article 157(6) to institute and undertake, take over and continue and discontinue at any stage before judgment any criminal prosecution before a court of law are exclusive to the Director of Public Prosecutions. That under Article 157(10) thereof, the Constitution provides that in the exercise of these powers, the Director shall not require the consent or authority of any person. 44.However, under Article 157(11) the Constitution the manner in which the Director of Public Prosecutions is required to exercise these powers that are conferred upon him is provided for as follows;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. 45.Article 159(2) of the Constitution of Kenya 2010 which provides as follows;“In exercising Judicial authority, the courts and tribunals shall be guided by the following principles:a.justice shall be done to all, irrespective of status;b.justice shall not be delayed;c.alternative forms of dispute resolution including reconciliation, mediation., arbitration and traditional dispute resolution mechanisms shall be promoted, subject to clause (3);d.justice shall be administered without undue regard to procedural technicalities; ande.the purpose and principles of this Constitution shall be protected and promoted.” 46.These provisions in my view are in pari materia with the above cited provisions of Article 157(11) of the Constitution and therefore particularly at paragraph a) and e) are applicable to and binding upon the ODPP as well and are therefore relevant to this Application. 47.In seeking to withdraw the Application under Section 87A of the CPC, the Applicant deposed that the reason that the Prosecutor gave is that the Prosecutor having reviewed the decision to charge after perusing the Police file with respect to Criminal Case No. E814/2025 alongside the Police file with respect to Criminal Case No. E1224/2025 it became clear to him that the charges in Criminal Case E814 of 2025 were meant to defeat the charges in Criminal Case No. E1224/2025. 48.The court notes that the assertion that it is the Applicants herein who reported their case against the Respondents to the Police first has not been denied by the Respondents. Indeed, from the Police OB Numbers given, it is apparent that both complaints were reported on 23rd April 2025 with the Applicant’s recorded as Case No. 13 and the other complainant’s case reported as Case No. 32. 49.It therefore beats logic how the Prosecutor reached the conclusion that the applicants are the ones who turned out to have filed their report in a bid to defeat the case against the accused persons whose case he withdrew. In fact, an objective consideration of the reasons given for the withdrawal would prima facie reasonably lead one to the conclusion that the person who ought to be charged with seeking to frustrate the others case is the one who filed their report after the first complaint had been filed. This then negates the assertion by the Prosecution in response to this Application that it is not correct that the first person to report an incident with police are first in right. 50.All the above considered and in light of the conclusions that I have herein reached, I am satisfied that the Applicants have sufficiently demonstrated that the Prosecutor in seeking the withdraw the charges against the accused person in Criminal Case No. E1224/2025 did so in contravention of the provisions of Article 157(11) and 159(2)(a) &(e) of the Constitution and the law. 51.That further, the Learned Trial Magistrate by allowing the said Application without giving the Applicants herein an opportunity to be heard was in breach of Article 157 (8), 159(2)(a) &(e) of the Constitutin, Section 9 of the Victims Protection Act as well as Section 87A of the Criminal Procedure Code. 52.I am further satisfied that my conclusions herein merit a revision of the decision of the Trial Magistrate for reasons that it has failed to satisfy the threshold of correctness, legality and propriety as provided under Section 362 of the Criminal Procedure Code. In this regard, I find merit in the Applicant’s Application and the same is accordingly allowed in the following termsa.That the Orders and Ruling of Hon. Onkoba Mogire (SPM) delivered on 23rd July 2025 in Eldoret CMCR No. E814 of 2025 Republic v Sylvester Kiplagat Kibet & Another allowing the withdrawal of the suit under Section 87(a) of the Criminal Procedure Code is now hereby reviewed and set aside in its entirety and the case against the accuse persons therein is accordingly reinstated and is to be heard and determined on its meritsb.The matter is to be mentioned before the Chief Magistrate Eldoret Law Courts within 14 days of the delivery of this Ruling for purposes of compliance READ DATED AND SIGNED VIRTUALLY AT BUNGOMA ON 9TH JULY 2026E. OMINDEJUDGE