[2014] KEHC 8857 (KLR)
The court found that the prosecution of Homa Bay Chief Magistrate Criminal Case No. 1183 of 2013 was conducted by persons who were not gazetted as prosecutors and therefore lacked the legal authority to prosecute on behalf of the National Social Security Fund. This procedural irregularity rendered the proceedings a...
Source-derived case information.
- Citation
- [2014] KEHC 8857 (KLR)
- Parties
- Applicant: Liu Ruilin; Applicant: Maa Dong Ming; Applicant: Sino Hydro Corporation Ltd; Respondent: Republic of Kenya; Respondent: The N.S.S.F Board of Trustees; Respondent: Director of Public Prosecutions
- Court
- High Court
- Court Station
- High Court at Homa Bay
- Jurisdiction
- Kenya
- Case Number
- Petition 5 of 2014
- Procedural Posture
- Constitutional Petition / Ruling
- Outcome
- criminal proceedings set aside and terminated
- Judges
- DAS Majanja
- Legal Topics
- Prosecutorial Authority, Gazettement of Prosecutors, Criminal Procedure Irregularities
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Liu Ruilin
Applicant
Maa Dong Ming
Applicant
Sino Hydro Corporation Ltd
Applicant
Republic of Kenya
Respondent
The N.S.S.F Board of Trustees
Respondent
Director of Public Prosecutions
Respondent
Procedural Posture
Constitutional Petition / Ruling
Legal Issues
- 1 Whether the prosecution of Homa Bay Chief Magistrate Criminal Case No. 1183 of 2013 was conducted by duly authorized and gazetted prosecutors.
- 2 Whether criminal proceedings can stand where prosecutors lack proper authority and gazettement.
Ratio Decidendi
The court found that the prosecution of Homa Bay Chief Magistrate Criminal Case No. 1183 of 2013 was conducted by persons who were not gazetted as prosecutors and therefore lacked the legal authority to prosecute on behalf of the National Social Security Fund. This procedural irregularity rendered the proceedings a nullity. The court set aside and terminated the criminal proceedings, but clarified that this was without prejudice to the Director of Public Prosecutions or the NSSF re-instituting the prosecution with properly authorized prosecutors.
Court Disposition
criminal proceedings set aside and terminated
Orders
- The criminal proceedings in Homa Bay Chief Magistrate’s Court Criminal Case No. 1183 of 2013 are set aside and terminated forthwith.
- This is without prejudice to the Director of Public Prosecutions or the NSSF re-instituting the prosecution with properly authorized prosecutors.
Full Case Text
Judgment text and source record
18 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT AT HOMA BAY
PETITION NO. 5 OF 2014
BETWEEN
LIU RUILIN …………………………………….………… 1ST APPLICANT
MAA DONG MING…………………………….………… 2ND APPLICANT
SINO HYDRO CORPORATION LTD …..…...…………. 3RD APPLICANT
AND
REPUBLIC OF KENYA ……………………………… 1ST RESPONDENT
THE N.S.S.F BOARD OF TRUSTEES ……..……… 2ND RESPONDENT
DIRECTOR OF PUBLIC PROSECUTIONS …....…. 3RD RESPONDENT
RULING
This matter was commenced by the petitioners who challenged the authority of prosecutors, prosecuting Homa Bay Chief Magistrate Criminal Case No. 1183 of 2013 on behalf of the National Social Security Fund (NSSF) without the necessary authority issued by the Director of Public Prosecutions and without gazettement of their appointment as prosecutors.
I directed the Learned Senior Assistant Director of Public Prosecutions to ascertain the position and report to the court. Counsel now informs the court that Messrs Asoyo and Adero, who were prosecuting the matter, were not gazetted prosecutors.
In the circumstances, I hereby set aside and terminate the Criminal Proceedings in Homa Bay Chief Magistrate’s Court Criminal Case No. 1183 of 2013 forthwith. This is without prejudice to the Director of Public Prosecutions re-instituting the prosecution based on the same facts or the NSSF doing so with properly authorized prosecutors. There shall be no order as to costs.
DATED and DELIVERED at HOMA BAY this 17th day of December 2014
D.S. MAJANJA
JUDGE