https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8574

Republic v Mohamed (Criminal Case E006 of 2026) [2026] KEHC 8574 (KLR) (15 June 2026) (Ruling) Neutral citation: [2026] KEHC 8574 (KLR) Republic of Kenya In the High Court at Machakos Criminal Case E006 of 2026 JWW Mong'are, J June 15, 2026 Between Republic Applicant and Khalid Salani Ahmed Mohamed Accused Ruling 1.The accused person has been charged with the offence of murder contrary to section 203 as read with section 204 of the Penal Code (Cap 63) Laws of Kenya. The Particulars of the offence are that on 11th Day of October 2025 at Viraj Estate Mavoko, Athi River East Sub-County within Machakos County, murdered Samuel Muiruri Maina. The said charge though dated 22nd December 2025, was not pleaded to until the 2nd day of June 2026, and the accused denied the charges thereto and a plea of not guilty, was entered. 2.From the record it appears that the accused was first apprehended by the Police in October 2025 and was subsequently released on cash bail by the Mavoko Magistrates Court vide MCCRMICS/E406/2025. 3.On 21st May 2026, the Prosecution applied to terminate the proceedings before court through a Nolle Prosequi. The Prosecution argued that the Director of Public Prosecutions (DPP) had arrived at this decision after reviewing the file and had formed the opinion that the matter be tried at the lower court through an inquest. He also sought for directions that an inquest file be opened in the matter. He argued that an inquest would allow a lot of issues to be determined since this, according the DPP, was not a straightforward matter. 4.Counsel watching brief for the Victims family opposed the application by DPP to terminate the proceedings at that stage. Counsel argued that the Accused had been out on bond from the lower court and had not even pleaded to the offence of murder. He further informed the court as it stood there was no case before the court for which the orders being sought by the DPP could be granted since even pre-trial motions such as mental health assessment to determine the capacity of the accused to plead to the charges had not been conducted. It was the position of the Victims family counsel that the family of the deceased had not even been consulted and were neither made aware of the reasons why the DPP sought to terminate the proceedings. 5.The Court on noting the anomaly remanded the accused person and directed that he be availed at the Machakos General Hospital- Level 5 for mental health assessment to be carried out and subsequently upon the court being furnished with the said report, the accused was on 2/6/2026 presented to court and pleaded not guilty to the offence of murder. 6.Upon taking of plea, the prosecution renewed their application to terminate the proceedings vide a Nolle Prosequi. The Prosecution argued that under Article 157 of the Constitution, the DPP had the sole mandate to apply to terminate any criminal case at any stage before judgment and that the decision to charge or not charge was solely the preserve of the DPP and it was not to be exercised in consultation with any other body or party. He argued that this decision had been arrived upon review of the evidence available and that the DPP had made the decision to have the matter terminated and have the evidence evaluated through an inquiry at the lower court. He urged the court to allow the DPP to enter a Nolle Prosequi in the criminal case before the High Court. 7.The application was once again vehemently opposed by the Counsel watching brief for Victims family. Counsel argued that a charge of murder such as the one facing the accused was a serious offence and once terminated, the accused was likely to abscond and leave the jurisdiction of the court. Counsel argued that the residence or nationality of the accused person had not been disclosed and there was no way of ensuring that once the murder charge is terminated, he will be available to cooperate with the prosecution for the conduct of the inquest. Counsel urged the court to balance the rights of the accused with those of the Victims family whose wish to have a just resolution to the case. 8.Counsel further argued that the Prosecution was yet to avail to them the trial bundle and they had no way of considering what evidence, if any, was available that led the prosecution to decide to terminate the proceedings at this stage. Counsel argued that the application was shrouded in secrecy and was brought in bad faith as the victim’s family had not been consulted or involved in the said decision or at all. 9.The application was supported by the Defence Counsel who argued that the review of the evidence carried out by the DPP was done after they had reached the DPP to consider the charges brought upon the accused person and consider having an inquest as opposed to the charge of murder. They argued that the victim’s family will have an opportunity to participate in the proposed inquest and provide evidence and if the accused is found culpable the DPP could always reinstate the charge of murder thereafter. 10.In addition and in the alternative, the Defence Counsel sought to have the court allow the accused to be released on bail at the same terms as previously imposed as he had demonstrated respect for the courts and has always attended court as and when called upon to do so and therefore there was no likelihood that he would abscond once released. He stated that the accused had demonstrated good faith. Determination 11.I have considered the arguments by the DPP and the reasoning behind the application to have the suit terminated through a Nolle Prosequi. I note that the office of the DPP and its functions are established by the Constitution under Article 157 which provide as follows;-157.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 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)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. 12.It is trite that Article 157 (6) as set out above has given the power to institute criminal proceedings to the DPP. In the same vein, the same article equally gives the DPP authority to determine whether to proceed with the prosecution or terminate the same at any stage of the hearing and before a judgment is rendered. I however note that this power is not absolute and for the DPP to do so, the Court is called upon to either allow or decline the said application for termination of the proceedings. Article 157(8) provides thus;- (8) The Director of Public Prosecutions may not discontinue a prosecution without the permission of the court.” To my mind, the power to terminate the case at any stage of the hearing and before judgment requires permission by the court and is therefore not absolute. It has to be tempered with good faith and not used to abuse the court process and the court’s role is not ceremonial but one that requires that the court must consider the factors placed before it before allowing such an application. 13.Article 50 of the Constitution has at great length set out the rights of an accused person. It has emphasized that the ultimate goal is to ensure that the right to a fair trial is accorded an accused person by the court. However, article 50(7) has provided a window for victims of crimes to participate in a trial and give their input to motions brought within the case such as the present one. The said Article 50(7) states thus; - (7) In the interest of justice, a court may allow an intermediary to assist a complainant or an accused person to communicate with the court.” Article 50(9) went ahead to mandate Parliament to give effect to the said article 50(7) by providing a framework for the victims participation through legislation. It provides as follows;- 50(9) Parliament shall enact legislation providing for the protection, rights and welfare of victims of offences.” It is from the above constitutional command that Parliament enacted the Victims Protection Act that has provided and set out the mechanisms of victim participation in criminal trials. 14.Victim participation in criminal matters in Kenya has evolved from a passive role of mere spectators to active and recognized legal engagement. The participation in criminal trials by victims or their families, though limited, includes Legal Representation of victims or their families in criminal proceedings. Victims are no longer limited to a passive "watching brief" handled by an observer lawyer. The Supreme Court in the Landmark case of Joseph Lendrix Waswa v. Republic (2009) eKLR, reinforced the rights of victims in its holding that a victim's legal counsel can actively participate in trials, and such participation includes evaluating evidence and being granted permission by the court to question witnesses, when necessary. It also reiterated that victims or their representatives could participate in criminal proceedings, provided that such participation does not infringe upon the accused's rights. The court emphasized the need for a balanced approach to ensure justice for both victims and the accused. 15.In addition, the Victims Protection Act, Under Section 4(2)(b) of the Act, has also set out the modalities of the victim’s right to be heard. It provides that victims must be given an opportunity to be heard and respond before any crucial decision that directly affects their safety or case outcome is made. Victims are also expected to provide to the court victim impact statements under Section 12 of the Act before the court renders its sentence. This directly influences the court's understanding of the physical, psychological, and financial harm caused by the offender. 16.Victims are equally entitled to receive Information and Updates on the case as it proceeds through the court system. They are expected, as of right, to be consistently informed of the progress of investigations and trial proceedings, including notification if the accused person is granted bail or escapes custody or where a decision to terminate a case, such as the one before this court, is arrived at. 17.Whereas I agree with the sentiments of the DPP that the victims counsel cannot take over the case and become an assistant prosecutor in the matter, I am alive to the statutory guarantees available to victims in matters that involve them. In the present case, the court has been told that the Prosecution wishes to terminate the present suit and commence an inquest at the lower court and hence the application to terminate the suit through a Nolle Prosequi. 18.On the flip side, the victims counsel argues that they have been completely been kept in the dark as to what factors have led to the DPP, who prepared and presented a charge of murder before court against the accused person, to decide to terminate the same. They argue that the same is not done in good faith and it violates their right to participate in the trial since an inquest is an inquiry and not a trial in the true sense of the word. They argue that they are ready to participate in the case and urge the court to decline the application and allow the case to proceed in accordance with the law. 19.I have considered the sentiments of the Victims Counsel and the argument put forward by the DPP. I agree that in setting out the powers of the DPP the Constitution saw it fit not to grant absolute power to the DPP to terminate proceedings commenced before a court whimsically as such power could render itself to abuse. I also note that it took the intervention of this court to have the accused plead to the charges six months after the charge sheet was drawn and presented before court. I find therefore that the DPP is not acting in good faith in its quest to terminate the case at this stage. I also find that failure by the DPP to involve the Victims family in its arriving at this monumental decision to terminate the criminal proceedings is prejudicial to the rights of the victim’s family who have been guaranteed a place in criminal cases that have a bearing on their rights by the Constitution of Kenya. 20.The upshot of my above finding is that I decline to allow the application by the DPP to enter a Nolle Prosequi and terminate this case at this stage and order that the same proceed to full trial in accordance with the law. 21.On bail, I note that the Accused having been released on bail in MCCRMICS/E406/2025 has consistently attended court and has not, without a valid explanation, absented himself. I therefore reinstate the said bail terms and allow the accused to be released on the same terms and conditions as set out in the said case. 22.It is so ordered. DATED SIGNED and DELIVERED at MACHAKOS this 15th DAY of JUNE 2026............................................................................J.W.W. MONGAREJUDGEIn the Presence ofApplicant present - in custody at Machakos Main PrisonMr. Nyamanga for the Accused.Mr. Musa Watching Brief for the Victim’s familyMr. Mang’are and Ms. Machuma for the StateAbdisalan-Court Assistant