[2015] KEHC 560 (KLR)
The court held that the apprehension by co-accused that discharged persons may testify against them is not a sufficient reason to refuse a notice of discontinuance of prosecution. The prosecution is the prerogative of the State, and the DPP is entitled to conduct its case as provided by law. The court found no...
Source-derived case information.
- Citation
- [2015] KEHC 560 (KLR)
- Parties
- Applicant: Republic; Defendant: Mwanyika Mbele alias Hamisi; Defendant: Sadi Mwake; Defendant: Amina Ruwa; Defendant: Stephen Mwanyala Mbele
- Court
- High Court
- Court Station
- High Court at Voi
- Jurisdiction
- Kenya
- Case Number
- Criminal Case 5 of 2015
- Procedural Posture
- Criminal Case / Ruling on Notice of Discontinuance (nolle Prosequi)
- Outcome
- Notice to discontinue prosecution against the 3rd and 4th accused persons admitted; they are discharged.
- Judges
- CM Kamau
- Legal Topics
- Nolle Prosequi, Discontinuance of Prosecution, Powers of Dpp, Discharge of Accused, Constitutional Rights
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Republic
Applicant
Mwanyika Mbele alias Hamisi
Defendant
Sadi Mwake
Defendant
Amina Ruwa
Defendant
Stephen Mwanyala Mbele
Defendant
Procedural Posture
Criminal Case / Ruling on Notice of Discontinuance (nolle Prosequi)
Legal Issues
- 1 Whether the Director of Public Prosecution can discontinue prosecution against the 3rd and 4th accused persons under Article 157 of the Constitution and Section 82(1) of the Criminal Procedure Code.
- 2 Whether apprehension by co-accused that discharged persons may testify against them is a valid ground to refuse a nolle prosequi.
- 3 Whether the court should require an inquest before granting leave to discontinue prosecution.
Ratio Decidendi
The court held that the apprehension by co-accused that discharged persons may testify against them is not a sufficient reason to refuse a notice of discontinuance of prosecution. The prosecution is the prerogative of the State, and the DPP is entitled to conduct its case as provided by law. The court found no evidence that the notice of discontinuance was brought to defeat the interests of justice. The DPP had complied with the constitutional and statutory requirements by seeking leave of the court and informing it of the intention to discontinue prosecution. The court therefore granted the notice and discharged the 3rd and 4th accused persons.
Court Disposition
Notice to discontinue prosecution against the 3rd and 4th accused persons admitted; they are discharged.
Orders
- The Notice to Discontinue Prosecution dated 24th November 2015 and filed on 1st December 2015 is admitted.
- Amina Phali Ruwa and Stephen Mwanjala Mbele (3rd and 4th accused) are hereby discharged pursuant to Section 82(1) of the Criminal Procedure Code and Article 157(6)(c) and Article 157(8) of the Constitution of Kenya.
Full Case Text
Judgment text and source record
31 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT VOI
CRIMINAL CASE NO 5 OF 2015
REPUBLIC ………………………………………………………………… PROSECUTOR
VERSUS
MWANYIKA MBELE alias HAMISI……………..............…………...............1ST ACCUSED
SADI MWAKE…………………………..…...………………………………….2ND ACCUSED
AMINA RUWA…………………….....………………………………………….3RD ACCUSED
STEPHEN MWANYALA MBELE…............……………………………………4TH ACCUSED
RULING
INTRODUCTION
The Director of Public Prosecution (DPP) filed a Notice to Discontinue Prosecution dated 24th November 2015 on 1st December 2015. The same was in respect of Amina Phali Ruwa and Stephen Mwanjala Mbele, the 3rd and 4th Accused persons respectively. Mr Sirima, counsel for the State, submitted that the DPP is empowered by Article 157(8) of the Constitution of Kenya, 2010 to discontinue prosecution but not without leave of the court.
He also referred the court to Article 157(6)(c) of the Constitution of Kenya that provides that the discontinuance of the prosecution can be done at any stage before judgment is delivered.
On the other hand, Mr Mwanyumba, counsel for the Accused persons indicated that ordinarily, he would not have objected to the discontinuance of the prosecution against the 3rd and 4th Accused persons but that he was apprehensive that they could be turned into Prosecution witnesses.
He proposed that the DPP ought to proceed by way of an Inquest to establish who caused the death of Julius Mwalimu Mbele on 22nd April 2015. Mr Mwanyumba suggested that there had been coercion and/or duress on the part of the 3rd and 4th Accused persons to testify against the 1st and 2nd Accused persons hence the entry of the nolle, a suggestion that was vehemently denied by Mr Sirima.
LEGAL ANALYSIS
I have carefully considered the oral submissions by both Mr Sirima and Mr Mwanyumba and had regard to the provisions of the Constitution of Kenya and the Criminal Procedure Code and note that an apprehension by a co-accused persons that the persons in whose regard prosecution is to be terminated cannot be a sufficient reason for the court not to allow a Notice of Discontinuance of the Prosecution.
The case belongs to the State. It must be given latitude to conduct its case. Indeed, a court cannot refuse to enter a nolle prosequi to protect accused persons from evidence that could be adduced against them by persons who they had been charged with in a case.
In addition, the option of the DPP seeking to establish the cause and circumstances leading to the death of the deceased herein through an Inquest is not one that would dissuade this court from granting leave to the DPP to discontinue prosecution herein.
The reasons advanced by Mr Mwanyumba were therefore not valid at all. In any event, under Section 82(1) of the Criminal Procedure Code Cap 75 (Laws of Kenya), all the DPP is required to do is to inform the court that it intends to discontinue the prosecution and the court shall at once discharge the accused person.
The DPP has sought leave as mandated by the Constitution of Kenya to discontinue the prosecution and informed the court of its intention. The court sees no reason that shows that this Notice of Discontinuance of Prosecution has been brought with the intention to defeat the interests of justice.
DISPOSITION
In the circumstances foregoing, I hereby reject the submissions by Mr Mwanyumba but instead admit the Notice to Discontinue Prosecution that was dated 24th November 2015 and filed on 1st December 2015. The 3rd and 4th Accused persons, namely, Amina Phali Ruwa and Stephen Mwanjala Mbele are hereby discharged pursuant to the provisions of Section 82(1) of the Criminal Procedure Code and as has been provided for in Article 157 (6) (c) and Article 157(8) of the Constitution of Kenya.
It is so ordered.
DATED and DELIVERED at NAIROBI this 1st day of December 2015
J. KAMAU
JUDGE
In the presence of:-
Sirima for ………………………………… State
Mwanyumba for ……………………….. 1st, 2nd, 3rd and 4th Accused Persons
Simon Tsehlo– Court Clerk