[2024] KEHC 10814 (KLR)
The court held that the power to institute and undertake criminal proceedings, including the right to appeal against an acquittal, is vested exclusively in the Director of Public Prosecutions (DPP) as per Article 157(6) of the Constitution of Kenya 2010. The complainant, having no prosecutorial mandate, lacks locus...
Source-derived case information.
- Citation
- [2024] KEHC 10814 (KLR)
- Parties
- Appellant: Linda Kageni Ntiba; Respondent: Josephine Akinyi; Respondent: Peter Karori
- Court
- High Court
- Court Station
- High Court at Nyandarua
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 113 of 2023
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- appeal struck out as incompetent
- Judges
- CM Kariuki
- Legal Topics
- Locus Standi in Criminal Appeals, Powers of Director of Public Prosecutions, Right of Appeal in Criminal Cases
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Linda Kageni Ntiba
Appellant
Josephine Akinyi
Respondent
Peter Karori
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether a complainant has locus standi to file a criminal appeal where the prosecution was conducted by the Director of Public Prosecutions.
- 2 Whether only the Director of Public Prosecutions is empowered to appeal against an acquittal in a criminal case.
Ratio Decidendi
The court held that the power to institute and undertake criminal proceedings, including the right to appeal against an acquittal, is vested exclusively in the Director of Public Prosecutions (DPP) as per Article 157(6) of the Constitution of Kenya 2010. The complainant, having no prosecutorial mandate, lacks locus standi to file a criminal appeal where the prosecution was conducted by the DPP. The court found that if the Constitution intended to grant such powers to a complainant, it would have expressly stated so. Consequently, the appeal filed by the complainant was incompetent and improperly before the court, warranting its striking out.
Court Disposition
appeal struck out as incompetent
Orders
- The appeal is struck out for want of locus standi.
- No orders as to costs.
Full Case Text
Judgment text and source record
29 paragraphs
Ntiba v Akinyi & another (Criminal Appeal 113 of 2023) [2024] KEHC 10814 (KLR) (Crim) (19 September 2024) (Judgment)
Neutral citation: [2024] KEHC 10814 (KLR)
Republic of Kenya
In the High Court at Nyandarua
Criminal
Criminal Appeal 113 of 2023
CM Kariuki, J
September 19, 2024
Between
Linda Kageni Ntiba
Appellant
and
Josephine Akinyi
1st Respondent
Peter Karori
2nd Respondent
Judgment
1. The instant appeal arises from the judgment of Hon Barasa- Senior Principal Magistrate, as he then was delivered on 11/5/2023 in criminal case No. E2714/2021, in which he acquitted the Respondents. The Hon magistrate acquitted the respondents after hearing the matter. The complainant/Appellant herein appealed instead of the Director of Public Prosecutions who prosecuted the case.
2. The Director of Public Prosecutions (DPP) is empowered to prosecute, institute, and undertake criminal proceedings (other than in court martial) with respect to any alleged offense to have been committed. This entails appealing in such matters to a higher court if not happy with the trial court verdict.
3. In the scheme of the arrangement of the prosecution mandate where the DPP institutes charges in respect of a criminal matter, the complainant has no role in appealing against the verdict of the trial court.
4. In the instant matter, the Office of Director of Public Prosecutions instituted and led the Prosecution in the matter. However, after the DPP lost in the result of the case,the Appellant instant appeal precipitating Respondents, via their Advocate, to raise an objection on the ground of the locus standi of the Appellant to lodge the instant appeal.
5. The Appellant did not attend court to prosecute the appeal thus, the objection was heard in her absence. Where the respondents anchored the objection on the provisions of Article 157 (6) of the constitution of Kenya 2010. The court after considering the said provisions, it arrived at a conclusion that only DPP could have lodged instant appeal and if the constitution intended the complainant to have such powers, it would have stated so. The said Article is to the effect that, -Article 157 (6) states that;“The Director of Public Prosecutions shall exercise State powers of prosecution and may institute and undertake criminal proceedings against any person before any court (other than a court martial) in respect of any offence alleged to have been committed."
6. Article 1 of the Laws of Kenya 2010 disperses or delegates state powers to the three (3) arms of government, namely: Parliament/Legislature and County Assemblies
Executive and County Executives
Judiciary and Independent Tribunals
7. The Prosecution powers are vested upon the Executive via the office of the Office of Director of Public Prosecutions.
8. In the premise, the Office of the Director of Public Prosecutions was the proper party that ought to have appealed if aggrieved by the trial court verdict.
9. Thus, the court finds that the instant appeal was improperly filed incompetent and thus struck out with no orders as to costs.
RULING DATED, SIGNED AND DELIVERED AT NYANDARUA THIS 19TH DAY OF SEPTEMBER 2024. .............................CHARLES KARIUKIJUDGE