https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/136

Republic v Miringu (Criminal Case E611 of 2026) [2026] KEMC 136 (KLR) (4 June 2026) (Ruling) Neutral citation: [2026] KEMC 136 (KLR) Republic of Kenya In the Mombasa Law Courts Criminal Case E611 of 2026 JM Mwenda, RM June 4, 2026 Between Republic Prosecutor and Abigael Wanjiku Miringu Accused Ruling 1.Before this Court for determination is an oral application by the prosecution seeking to withdraw this case pursuant to Section 87(a) of the Criminal Procedure Code. The application was made on 21/05/2026 by learned prosecution counsel, Mr. Mbote. 2.The accused person is charged with the offence of obtaining money by false pretences contrary to Section 313 of the Penal Code. The particulars of the offence are contained in the charge sheet and I need not reproduce them herein. 3.The accused pleaded not guilty and was subsequently released on cash bail. Mr. Igunza, watching brief for the complainant/victim, appeared and vehemently opposed the intended withdrawal. 4.In support of the application, Mr. Mbote informed the Court that the accused had written to the Office of the Director of Public Prosecutions (ODPP) seeking review of the decision to charge her and that, upon review, the DeputyRegional Coordinator, ODPP COAST REGION, directed that the matter be withdrawn on grounds that the facts and evidence on record did not disclose criminal culpability and that the dispute ought properly to have been handled as a civil matter. 5.Opposing the application, Mr. Igunza submitted that the intended withdrawal was improperly informed, arguing that the victim had consistently attended court and was ready and willing to testify. Counsel further submitted that the decision to withdraw appeared to have been made without adequate interrogation of the evidence already available and urged the Court to decline the application and allow the matter to proceed to hearing. Determination. 6.I have considered the submissions by both parties and the applicable law. 7.Article 157(6)(c) of the Constitution grants the Director of Public Prosecutions powers to discontinue criminal proceedings. However, those powers are not absolute. Article 157(8) expressly provides that the DPP may not discontinue a prosecution without the permission of the Court. 8.The requirement for leave of the Court is not a ceremonial exercise. The Court must satisfy itself that the discretion to discontinue proceedings has been exercised judiciously, in good faith, and in a manner that promotes rather than undermines the administration of justice. 9.While the prosecution submits that the matter is purely civil in nature, no sufficient material has been placed before this Court demonstrating how that conclusion was reached, particularly where the charge before Court alleges obtaining money by false pretences, an offence whose determination ordinarily requires interrogation of evidence.Nothing at all has been availed in court to support what the prosecution has told the court. 10.The Court also notes that the matter has already progressed to the point where the accused has taken plea and the complainant has expressed readiness to testify. In those circumstances, a bare assertion that the matter is civil, without a proper evidentiary foundation being laid before Court, cannot be sufficient basis to terminate criminal proceedings. Furthermore, nothing prevents a civil and a criminal matter to proceed concurrently if a criminal offence is alleged to have been committed 11.Courts must remain vigilant to ensure that criminal processes are not abused. Equally, courts must guard against situations where prosecutorial powers are exercised in a manner that creates the perception that justice may be circumvented without sufficient explanation. 12.Having considered the totality of the circumstances, I am not persuaded that sufficient grounds have been placed before this Court to warrant exercise of discretion in favour of the intended withdrawal. 13.Consequently, the prosecution’s application for withdrawal under Section 87(a) of the Criminal Procedure Code is hereby declined. 14.The matter shall proceed for hearing on priority basis. 15.Orders accordingly. DATED, SIGNED AND DELIVERED IN OPEN COURT THIS 4TH DAY OF JUNE 2026.In presence of:Court assistant Ms getrude Accused personMr. Tito prosecution counselMr Igunza counsel watching brief.SIGNED BY/FOR: JAMLICK MURIITHI MWENDWAThe Judiciary of Kenya1/4Doc IDENTITY: 438701727272367781228524799050Tracking Number:OO6J5M2026