[2022] KEHC 16055 (KLR)

Republic v Kamotho & another (Criminal Case 60 of 2019) [2022] KEHC 16055 (KLR) (Crim) (6 December 2022) (Ruling)

Neutral citation: [2022] KEHC 16055 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Criminal

Criminal Case 60 of 2019

DO Ogembo, J

December 6, 2022

Between

Republic

Prosecutor

and

Sarah Wairimu Kamotho

1st Accused

Peter Njoroge Karanja Alias PK

2nd Accused

A nolle prosequi does not infringe upon the right to information of the victims of the crime.

On the entering of a nolle prosequi, an accused person would stand discharged. The accused would not be acquitted of the charges. The accused could still be charged with the offence. The victims would enjoy their rights should an accused be re-charged.

Reported by John Ribia

Criminal Law– nolle prosequi – nature and scope - what were the circumstances in which the Director of Public Prosecutions could enter a nolle prosequi - whether an accused person could be subjected to the same charges later after a nolle prosequi had been entered – Constitution of Kenya, (2010), article 157; Office of Director of Public Prosecutions Act (Act No. 2 of 2013), section 5(1)(b)(iii).Constitutional Law– Director of Public Prosecutions – powers of the DPP - whether the Director of Public Prosecution exercised absolute and unfettered authority in the exercise of its functions – Constitution of Kenya, (2010), article 157; Office of Director of Public Prosecutions Act, (Act No. 2 of 2013), section 5(1)(b)(iii).Constitutional Law– fundamental rights and freedoms – right to information - rights of victims to an alleged crime – where a nolle prosequi had been entered – rights of a victim to a crime where a nolle prosequi had been entered discharging the accused - whether the decision to enter a nolle prosequi had a bearing on the rights of victims of the accused’s crime - whether the Director of Public Prosecutions, in entering a nolle prosequi, infringed upon the rights of the victim of the accused's alleged crime to be informed in advance of the evidence the prosecution and defence intended to rely on and to have reasonable access to that evidence – whether the Director of Public Prosecutions had the duty to inform the victims of an alleged crime of the reasons why he entered a nolle prosequi - Constitution of Kenya, 2010, article 35 and 157; Victim Protection Act(Act No. 17 of 2014), sections 23(1); Office of Director of Public Prosecutions Act (Act No. 2 of 2013), section 5(1)(b)(iii)

Brief facts The accused persons had been jointly charged with the offence of murder. They pleaded not guilty. When the matter came up for pre-trial conference, the Director of Public Prosecution (DPP) entered a nolle prosequi(unwilling to pursue) with the intention to have the charges against the accused persons withdrawn.This nolle prosequi was opposed by the victims on the grounds that the DPP had not given reasons in writing for entering the nolle prosequi, that the nolle prosequi was entered into in bad faith and that the nolle prosequi infringed upon the rights of the victims under the Victims Protection Act.

Issues

What were the circumstances in which the Director of Public Prosecutions could enter a nolle prosequi?

Whether an accused person could be subjected to the same charges later on after a nolle prosequihad been entered by the DPP.

Whether the Director of Public Prosecutions had the duty to inform the victims of an alleged crime of the reasons why he entered a nolle prosequi.

Whether the decision to enter a nolle prosequi had a bearing on the rights of victims of the accused’s alleged crime.

Whether the Director of Public Prosecutions, in entering a nolle prosequi, infringed upon the rights of the victim of the accused's alleged crime to be informed in advance of the evidence the prosecution and defence intended to rely on and to have reasonable access to that evidence.

Whether the Director of Public Prosecutions exercised absolute and unfettered authority in the exercise ofhis functions.

Relevant provisions of the Law Constitution of Kenya, 2010Article 157157. Director of Public Prosecutions(1) There is established the office of Director of Public Prosecutions.(2) The Director of Public Prosecutions shall be nominated and, with the approval of the National Assembly, appointed by the President.(3) The qualifications for appointment as Director of Public Prosecutions are the same as for the appointment as a judge of the High Court.(4) The Director of Public Prosecutions shall have power to direct the Inspector-General of the National Police Service to investigate any information or allegation of criminal conduct and the Inspector-General shall comply with any such direction.(5) The Director of Public Prosecutions shall hold office for a term of eight years and shall not be eligible for re-appointment.(6) The Director of Public Prosecutions shall exercise State powers of prosecution and may—(a) 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;(b) take over and continue any criminal proceedings commenced in any court (other than a court martial) that have been instituted or undertaken by another person or authority, with the permission of the person or authority; and(c) subject to clauses (7) and (8), discontinue at any stage before judgment is delivered any criminal proceedings instituted by the Director of Public Prosecutions or taken over by the Director of Public Prosecutions under paragraph (b).(7) If the discontinuance of any proceedings under clause (6)(c) takes place after the close of the prosecution’s case, the defendant shall be acquitted.(8) The Director of Public Prosecutions may not discontinue a prosecution without the permission of the court.(9) The powers of the Director of Public Prosecutions may be exercised in person or by subordinate officers acting in accordance with general or special instructions.(10) The Director of Public Prosecutions shall not require the consent of any person or authority for the commencement of criminal proceedings and in the exercise of his or her powers or functions, shall not be under the direction or control of any person or authority.(11) 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.(12) Parliament may enact legislation conferring powers of prosecution on authorities other than the Director of Public Prosecutions.

Held

The nolle prosequi had been entered by the Director of Public Prosecutions (DPP) pursuant to article 157(6)(c) and 159(9) of the Constitution of Kenya, 2010 (Constitution). The DPP was constitutionally mandated and granted the powers discontinue any criminal proceedings instituted by himself or taken over at any stage before judgment.

The independence of the office of DPP was guaranteed under article 157(10) of the Prosecutions. The DPP did not exercise absolute and unfettered authority in the exercise of his functions. Article 157(II) of the Constitution gave the caveat to the DPP on the conduct of his functions to have regard to the public interest, interests of the administration of justice and the need to prevent and avoid abuse of the legal process.

The DPP was required to satisfy the court that the nolle prosequi sought to be entered was in public interest, in the interest of administration of justice and was not an abuse of the process of the court. The nolle prosequi would fail and collapse were the DPP fail to satisfy the constitutional threshold.

The Victims Protection Act did not give any directions regarding how the right to the information was to be exercised or enjoyed or the format in which the information was to be given and neither did it give direction on the period of time within which the information had to be availed.

The DPP had power to recharge the accused person after a nolle prosequi. The significance of the nolle prosequi was that if the circumstances which led to the entry of the nolle prosequi remained the same, the accused would remain discharged of the offence until such a time there was prima facie evidence incriminating him of the offence.

A victim had a right to be informed in advance of the evidence the prosecution and defence intended to rely on and to have reasonable access to that evidence. The manifest purpose of the Victim Protection Act was to assist in the prosecution of cases but it also provided that victims were entitled to notice and information to the ongoing proceedings of the court. The decision not to prosecute had a direct correlation with the victims’ rights to compensation by the offender.

On entering of a nolle prosequi, the accused would stand discharged. They would not be acquitted of the charges. In effect, upon conclusion of the inquest as intended, the accused persons could still be charged with the offence and the victims would have and enjoy their rights as victims in the criminal proceedings.

The instant case was an old case filed over 3 years ago. It had however never commenced in terms of taking evidence. The DPP had not exercised its powers under article 157(1) and 157(9) of the Constitution as read with section 5(1)(b)(iii) of the Office of Director of Public Prosecutions Act in bad faith. The objections raised by the victims were accordingly dismissed. The court allowed the nolle prosequi entered by the DPP. The two accused persons were discharged.

Nolle prosequi allowed.

Citations Cases Samuel Mungai Chege v Republic (Petition 15 of 2018; [2018] KEHC 2492 (KLR)) — Explained

Statutes Constitution of Kenya, 2010 — Article 50(9); 157(1)(6)(c)(9)(10); 159(9) — Interpreted

Penal Code Act (CAP. 63) — Section 203, 204 — Interpreted

Victim Protection Act

AdvocatesNone mentioned

Ruling

1. The 2 accused Sarah Wairimu Kamotho and Peter Njoroge Karanja alias “PK” were jointly charged with the offence of murder contrary to section 203 as read with section 204 of thePenal Code. They both pleaded not guilty to the joint charge filed in court on 11. 10. 2019. The case of the accused persons has thereafter gone through several pre-trial motions. To this moment, the substantive hearing of the case is yet to commence.

2. When the matter came up for pre-trial conference on 30. 4.2022, Ms Wangoi Gichui, learned counsel for the state informed the court that the Director of Public prosecutions in exercise of his powers under article 157 of the Constitution, has filed a nolle prosequi in this matter. That the said constitutional provision gives the Director of Public Prosecutions powers to proceed with or withdraw any case. That the intention is to have the charges against the 2 accused persons withdrawn. Counsel added that the Director of Public Prosecution has also filed a letter to the deputy Registrar indicating the intention to have the matter registered as an inquest at the chief Magistrates court at Milimani.

3. In the submissions, counsel has highlighted the reasons for the action of the Director of Public Prosecutions. That in Constitutional Petition No E334 of 2021, filed at the High Court constitutional and Human Rights Division, 2 affidavits were filed by a Mr. Gachomo of the Directorate of Criminal Investigations (DCI) in which the officer made averments regarding investigations into the matter. But that the said officer has retracted these 2 affidavits in another affidavit of 24. 10. 2022 wherein the officer disassociated himself with the averments of the 2 earlier affidavits.

4. Counsel also went on that some crucial areas of investigations and evidence have not been provided to the prosecution like cell phone data and statements of key witnesses. And further that several parties have indicated that they have additional information which is yet to be included in the file. It was lastly submitted that this is in good faith and to the best interest of both the victims and the public.

5. Mr Murgor, senior counsel, for the 1st accused, has not opposed this application. Counsel, has submitted that the move by the DPP vindicates the accused’s position that no sufficient evidence was ever gathered by the DCI to justify the charging of the accused in court in the first place. That the state, despite repeated pleas from the defence, have never supplied the defence with the evidence they intend to rely on in the trial, leading to the filing of a petition at the High Court’s constitution and Huma Right’s Division for breach of the rights of the accused. In his view, a public inquest would be appropriate as the same would accord anyone including the victims the opportunity to present whatever evidence they could avail.

6. Counsel went to make further pleas and requests for consideration. That in view of the nolle, the property held as a scene of crime be handed over to accused 1. That the cash bail and passport deposited be released to the accused. And lastly, that the dog of the accused be released to her.

7. Mr Mbati, learned counsel for accused 2 also supported the state on the entering of the nolle prosequi. Counsel supported the submissions of counsel for accused 1 that the investigations were poorly done. That the defence has been taken in circles on the question of documentary evidence. That the power of the DPP to discontinue criminal cases can only be challenged if it is in bad faith (Harrison Auko v Republic Miscellaneous Application 55/2005). That the circumstances of the case, especially the withdrawal of the affidavits, confirms that the nolle is entered in good faith.

8. Learned counsel Mr Omari for the family of the deceased on the other hand, opposed the nolle prosequi. Counsel submitted that under section 23(1) of the victims protection Act, the victim must be given the reasons for entering a nolle in writing. Counsel relied on Petition No 15/2018, Samwel Mungai Chege v Republic (Kajiado)(2018)eKLR, in which the Honourable Justice Reuben Nyakundi, stressed on the rights of victims. That the victim has a right to be informed.

9. Mr Ombeta, also counsel for the victims, supported the submissions of Mr. Omari that no information has been given to the victim at all. That the letter was filed only 1 day before the date of mention and the prosecution has only given reasons orally in court, thus proving bad faith on the part of the DPP. That the requirement is to put the same in writing. That Justice is as much for the accused as it is for the victims.

10. Counsel also objected to the property being released to the accused on the basis that it remains a crime scene whether or not the matter would proceed as an inquest.

11. I have considered the submissions of the parties herein. There is no doubt that the Director of Public dated 29. 11. 2022, same was filed on the same date of 29. 11. 2022. There is no doubt also that on the same date, the Director of Public Prosecution also filed a letter of even date in which it is explained that the Director of Public Prosecutions has directed that this matter be handled via an inquest to be filed at the chief magistrate’s court. In the said letter, it is stated that this will enable the contradictions that have affected the proceedings of this matter to be heard in detail by all parties and that in the process, this will provide an opportunity for parties to present any information that had not been explored substantially before the court.

12. The nolle prosequi has been entered by the Director of Public Prosecution pursuant to article 157(6)(c) and 159(9) of the Constitution of Kenya. It is important therefore that the court considered these constitutional provisions:-Article 157(6)(c) states;“The director of Public Prosecutions shall exercise state powers of prosecution and may; Subject to clauses 7 and 8, discontinue at any stage before Judgment is delivered any criminal proceedings instituted by the Directors of Public Prosecution or taken over by the Director of Public Prosecutions under paragraph (b)

13. All the parties herein are agreed that the Director of Public Prosecution is constitutionally mandated and granted the powers discontinue any criminal proceedings instituted by itself or taken over at any stage before judgment. The victims herein (family of the deceased) have opposed the entry of this nolle prosequi only on the basis that the Director of Public Prosecutions has not acted in good faith.

14. The independence of the office of Director of Public Prosecutions is guaranteed under article 157(10) of the Prosecutions, that;“The Director of Public Prosecutions shall not require the consent of any person or authority for the commencement of Criminal proceedings and in the exercise of his or her powers or functions, shall not be under the direction or control of any person or authority”

15. But does the Director of Public Prosecution exercise absolute and unfettered authority in the exercise of his functions? Obviously not. Article 157(II) gives the caveat to the Director of Public Prosecutions on the conduct of his functions thus;“In exercising the powers conferred by this article, the Director of Public Provisions shall have regard to the public interest, interests of the administration of Justice and the need to present and avoid abuse of the legal process.”

16. It is for this reason that under the new constitutional order, the Director of Public Prosecutions is required to satisfy the court that the nolle prosequi sought to be entered is in public interest, in the interest of administration of justice and is not an abuse of the process of the court. In effect therefore the nolle prosequi would fail and collapse should the Director of Public prosecutions fail to satisfy the above constitutional threshold.

17. This nolle prosequi presented by the Director of Public Prosecutions has been opposed by the victims on the grounds that the Director of Public Prosecutions has not given in writing reasons for entering the nolle prosequi, and that this infringes the victims’ rights under the Victims Protection Act, No 17 of 2014. The preamble to the Act provides“An Act of parliament to give effect to article 50(9) of the Constitution; to provide for protection of victims of crime and abuse of power, and to provide them with better information and support services to provide for reparation and compensation to victims, to provide special protection for vulnerable victims, and for connected purposes.”

18. The objection of the victims herein have been based on section 23(1) of the Act. With respect, I am not persuaded by these submissions. Section 23(1) of the Act deals with the right to restitution and compensation, and not to information. However, section 19(1) of the Act, deals with the right to information this;“A victim has the right to information under article 35 of the Constitution, this Act or any other written law.”

19. The Act however, does not give any directions regarding how the right to the information is to be exercised or enjoyed. It does not direct in what format the information is to be given. Neither does it direct on the period of time within which the information must be availed. The Act does not also declare any information in time, in whichever format or at all.

20. The victims have referred this court to the case of Samwel Mungai Chege v Republic (2018)eKLR, on the issue of right to information. I have considered the said authority closely. Relying on the case of Harrison Auko v Republic HCMCR Application No 55 of 2006, the judge noted;“It is expected that the DPP is to exercise his power to enter a nolle prosequi for public good and in good faith. In short, his action is expected to promote public interest…..”

21. The court therein went on to refer to the decision in Seenoi Ene Persimei Esho Sisina & 8 others v AG (2013)eKLR, that;“An application to enter a nolle prosequi can only be a subject of courts intervention where it has been shown what the DPP has abused has discretion where the decision maker exercises discretion for an improper purpose where the decision maker is in breach of duty to act fairly, where the decision maker has failed to exercise statutory discretion….”

22. The Honourable Judge in the case cited went on to hold that it is of fundamental importance to hold that the DPP has power to recharge the accused person after a nolle prosequi. And that the significance of the nolle prosequi is that if the circumstances which led to the entry of the nolle rosequi remain the same, the accused will remain discharged of the offence until such a time there is prima facie evidence incriminating him of the offence.

23. And on the right to information to the victim, the honourable judge had this to say amongst other findings;“A victim has a right to be informed in advance of the evidence the prosecution and defence intends to rely on and to have reasonable access to that evidence. The manifest purpose of the Victim Protection Act is normally to assist in the prosecution of cases but also they are entitled to notice and information to the ongoing proceedings of the court ….. that the decision not to prosecute has a direct correlation with the victims rights to compensation by the offender as expressly stated in section 23(1) of the Act.”

24. I agree and associate myself with the above holding of the Hon. Justice Reuben Nyakundi.

25. The issue for determination herein is therefore whether the Director of Public Prosecutions has acted in bad faith and in contravention of article 157(1) of the Constitution and consequently infringed on the rights of the aggrieved victims. To determined this, it is necessary to consider the following circumstances that have come up clearly during these proceedings.

26. The Director of Public prosecutions has duly filed a valid nolle prosequi dated 29. 11. 2022. The Director of Public Prosecutions has in addition filed a letter dated 29. 11. 2022 detailing the reasons for entering the nolle prosequi. That there are contradictions that have affected the proceedings of this matter and there is need to provide an opportunity for parties to present any information that had not been explored substantially before the court. That it is recommended that this matter be filed as an inquest before the Chief Magistrates Court.

27. As observed above, on entering of a nolle prosequi, the accused persons would stand discharged. They would not be acquitted of the charges. In effect, upon conclusion of the inquest as intended, the accused persons could still be charged with the offence and the victims would still have and enjoy their rights as victims in the criminal proceedings.

28. Additional grounds were also submitted on the prosecution. That the investigating officer, one Mr Gachomo has since retracted 2 affidavits he had initially sworn in support of the charge and or investigations. That this has made it necessary that an inquest be held first so that the circumstances surrounding these investigations are determined first. It was also submitted by the defence, a fact not denied by both the prosecution and victims sides, that the defence have never been supplied with the documentary evidence held by the prosecution, if at all. And that this has impended the commencement or progress of this criminal trial, leading to the filing of a constitutional petition before the Constitutional and Human rights division of the court, on alleged infringement on the rights of the accused persons. It is worth noting that this is an old case first filed before this court in October 2019, over 3 years ago. It has however never commenced in terms of taking evidence.

29. On the submission made in court on 30. 11. 2022 regarding the entering of the nolle prosequi, though no affidavit of service was filed to confirm when and the mode of service of the nolle and the accompanying letter of the Director of Public Prosecutions, this court notes that all the parties to these proceedings were represented. And the court received the submissions of all the parties present including counsel representing the victims.

30. From the foregoing, this court is not convinced by the submissions from the side of the Victims that the Director of Public Prosecutions has exercised his powers under article 157(1) and 157(9) of the Constitution as read with section 5(1)(b)(iii) of the Office of Director of Public Prosecutions Act, No 2 of 2013 in bad faith. The objections raised by the victims are accordingly dismissed.

31. I accordingly allow the nolle prosequi entered by the Director of public prosecution herein on 29. 11. 2022. The 2 accused persons are accordingly discharged.

32. As to the other prayers sought by counsel for the accused, regarding return of the property, return of property held in custody, this court noted that the same could be part of disputes still pending in courts regarding this matter. I therefore shall not make any orders on the same. Orders accordingly

Hon. D. O. OGEMBOJUDGE6TH DECEMBER, 2022. COURT:Ruling read out in court (on-line) in presence of the accused, Mr Murgor Senior Counsel/Ms Kala for accused 1, Mr Mbati for accused 2, Ms Gichuhi holding brief for Mr Monda for state, Mr Omari for Victims/with Mr Ombeta/Mr. Wambui and Ms Martina Swigga. It is noted that the victim Gabriella is present from Netherlands.Hon. D. O. OGEMBOJUDGE6TH DECEMBER, 2022. Omari:We ask right of appeal.Ms. Gichuhi:It is their right. We do not object.Court:Parties have right to appeal. Certified copies of proceedings and ruling to be supplied to parties.