https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11133

Republic v Karuma & another (Criminal Case 45 of 2017) [2026] KEHC 11133 (KLR) (14 July 2026) (Ruling) Neutral citation: [2026] KEHC 11133 (KLR) Republic of Kenya In the High Court at Nakuru Criminal Case 45 of 2017 JM Nang'ea, J July 14, 2026 Between Republic Prosecutor and Morgan Karuma 1st Accused Bonface Ndogo Gitau 2nd Accused Ruling 1.The Accused persons jointly face the capital charge of murder contrary to Section 203 as read with Section 204 of the Penal Code. The particulars of the offence state that on 15th October, 2017 at in KITI Nakuru Town, Nakuru East Sub-County, within Nakuru County they jointly murdered Hannah Wanjiru Gitau. The Accused persons pleaded not guilty to the charge. 2.It seems that 5 prosecution witnesses have so far testified. On 7th May 2026, the prosecution Counsel (Mr. Wakasyaka) presented nolle prosequi dated 28th April, 2026 signed by Deputy Director of Public Prosecutions (Tom Imbali) who is the Regional Head, South and North Rift Region, on behalf of the Director of Public Prosecutions (“the DPP’’). Counsel Imbali states in the nolle prosequi instrument in respect to the 1st Accused person only;“In exercise of powers conferred on the Director of Public Prosecution by Article157 (6) of the Constitution of Kenya and under section 83 of the Criminal Procedure Code, I hereby enter nolle prosequi and inform this Honorable Court that the Republic intends that the proceedings against; Morgan Karuma who is charged with the offence of murder contrary to Section 203 as read with Section 204 of the Penal Code shall not continue.” 3.The Application is made vide a Notice of Motion dated 6th May 2026. The Prosecution fully relies on an affidavit in support of the Application. The Defence Counsel (Mr Ogolla) representing the 1st Accused had no objection to the Application and filed no formal reply thereto and/or submissions thereon. 4.Mr. Daniel Wakasyaka (Prosecution Counsel) swore an affidavit in support of the Motion underscoring the DPP’s power to discontinue criminal proceedings under Article 157 of the Constitution. Counsel states that their review of the file revealed that the evidence in their possession is no longer sufficient to sustain the charge as against the 1st Accused person. Withdrawal of the charge is therefore in the public interest and serves to avoid waste of judicial time. Misuse of public resources and exposure of the Accused to unnecessary hardship due to lack of sufficient evidentiary foundation, adds Counsel. 5.According to Counsel, the nolle prosequi is not actuated by malafides, corruption, political influence or other improper considerations. 6.Article 157 (6) of the Constitution is in the following terms;“(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 clause (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. 7.Section 82 of the Criminal Procedure Code under the Application is also brought provides for;“Power of Director of Public Prosecutions to enter nolle prosequi.(1)In any criminal case and at any stage thereof before verdict or judgment, as the case may be, the Director of Public Prosecutions may enter a nolle prosequi, either by stating in court or by informing the court in writing that the Republic intends that the proceedings shall not continue, and thereupon the accused shall be at once discharged in respect of the charge for which the nolle prosequi is entered, and if he has been committed to prison shall be released, or if on bail his recognizances 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.(2)If the accused is not before the court when a nolle prosequi is entered, the registrar or clerk of the court shall forthwith cause notice in writing of the entry of the nolle prosequi to be given to the keeper of the prison in which the accused may be detained.” 8.Article 157 (11) of the Constitution enacts;“that in exercising the powers conferred by the Article, the Director of Public Prosecution shall have regard to the public interest, the interests of administration of justice and the need to prevent and avoid abuse of the legal process.” 9.Section 23 of the Victim’s Protection Act requires that the opinion of the victim of the offence ought to be sought before the Director of Public Prosecutor (DPP) exercises his discretion to terminate a case. The law does not, however state that the victim’s views must be adhered to. 10.In Republic vs Nyalandi, Criminal Revision 524 of 2020 (2023) KEHC 1063, KLR (Criminal) (19 January 2023) (Ruling) it was opined that to determine if the threshold set in Article 157 (11) of the Constitution has been complied with, the court shall consider the following inter alia;a.Whether the Application is brought in good faith.b.Whether the society has a stake in the matter in issue.c.Whether the Accused will suffer prejudice if the Application is allowed or denied.d.Whether reasons in support of the Application are reasonable, sufficient and for adequate.e.Whether there has been inordinate delay in making the Application for withdrawal of the casef.The sentiments of the Respondent to the Application. 11.As held in Republic vs Sarah Wairimu (2019) KEHC 11946 (KLR); the court shall intervene in an Application to enter nolle prosequi where it is shown that the DPP abused discretion, or exercised it for improper purposes or where there is failure to exercise statutory discretion. This holding is approved in Seenoi Ene Parsimei Esho Sisiria & 8 Others vs Attorney General (2013) eKLR. 12.There is no doubt pursuant to Article 157 (11) of the Constitution supra and Section 25 (1) the Office of the Director of Public Prosecutions Act that the DPP is obligated to seek permission of the court to discontinue any criminal proceedings. This constitutional edict overrides the DPP’s power to enter nolle prosequi by dint of section 82(1) of the Criminal Procedure Code supra. The issue for determination is whether the DPP has satisfied the provisions of Article 157(11) of the Constitution so as to warrant termination or discontinuance of these proceedings as desired. 13.The views of the deceased’s family have not been obtained contrary to the requirement of the law. Hearing has also substantially progressed as 5 witnesses have testified. The Application is also belated, coming as it does about 9 years after institution of the charge. I find in the circumstances that the constitutional and legal threshold for termination of the case has not been satisfied. 14.The upshot is that the Application is dismissed. J. M. NANG’EA, JUDGERULING DATED, SIGNED AND DELIVERED VIRTUALLY AT NAKURU THIS 14TH DAY OF JULY, 2026.In the presence of:Mr. Wakasyaka for the DPP.Mr. Ogola Advocate for the 1st Accused.Mr. Mongeri for the 2nd Accused.The Court Assistant - Jeniffer J. M. NANG’EA, JUDGE