https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/96

Republic v Obado & 17 others (Anti-Corruption and Economic Crimes Case E018 of 2020) [2026] KEMC 96 (KLR) (15 May 2026) (Judgment) Neutral citation: [2026] KEMC 96 (KLR) Republic of Kenya In the Anti-Corruption Magistrate's Court Anti-Corruption and Economic Crimes Case E018 of 2020 CA Okore, SPM May 15, 2026 Between Republic Prosecutor and Zakaria Okoth Obado 1st Accused Dan Achola Okoth 2nd Accused Scarlet Susan Okoth 3rd Accused Jerry Zachary Okoth 4th Accused Evelyne Adhiambo Zachary 5th Accused Jared Peter Odoyo Oluoch Kwaga 6th Accused Christine Akinyi Ochola t/a Atinus Services and Dankey Press 7th Accused Joram Opala Otieno t/a Mactebac Contractors; Deltrack Ict Services and Seletrack Consultants 8th Accused Ochanda Patroba Otieno t/a Dolphus Softwares; Joyush Business and Swyfcon Engineering 9th Accused Penina Auma Otago t/a Pesulus Supplies 10th Accused Carolyne Anyango Ochola 11th Accused Misoft Limited 12th Accused Tarchdog Printers Limited 13th Accused Kajulu Business Limited 14th Accused Victorious Investments Limited 15th Accused Deltrack Ict Services Limited 16th Accused Swyfcon Engineering Limited 17th Accused Dolphus Softwares Limited 18th Accused Judgment Part I: Introduction 1.Except offences of genocide, war crimes, crimes against humanity and those defined by the Sexual Offences Act, the law reposes discretionary power upon DPP to negotiate and enter into a Plea Agreement with an Accused Person in respect of reduction of a charge to a lesser included offence or withdrawal of the charge or a stay of other charges or the promise not to proceed with other possible charges, provided the agreement surmounts certain established constitutional, statutory and decisional law principles, test and threshold discussed hereinafter. 2.Committed to this Court for determination - whether to accept or reject under the provisions of section 137D(3) of the Criminal Procedure Code (hereinafter “the CPC”) - is a Plea Agreement dated 28th August 2025, entered between the Director of Public Prosecutions (hereinafter “the DPP) on one hand, and all the Accused Persons herein, on the other hand. 3.In the said Plea Agreement, parties to the agreement namely the DPP and the Accused Persons herein, settled on the withdrawal option provided under section 137A(1)(b) of the CPC, the forfeiture of property valued at Kshs. 235,000,000 plus two motor vehicles by the Accused Persons, through the Civil Settlement Agreement entered between EACC and the Accused Persons in High Court ACEC Cases Numbers 32 of 2018 and E010 of 2022, playing a cornerstone role in taking that pathway. 4.This decision necessarily demands this Court to strike a delicate balancing act. This particular Plea Agreement brings to the fore not only the petulant but pertinent question of withdrawal envisaged under section 137A(1)(b) of the CPC, but also, from the administration of justice perspective, the ever-dicey interplay between civil and criminal anti-corruption tools and in particular, the interface between the civil versus criminal forfeiture, and whether once a civil forfeiture has been successfully pursued by Ethics and Anti-Corruption Commission (hereinafter “EACC”) through alternative forms of dispute resolution as envisaged by Article 159(2)(c) of the Constitution like was the case here, the forfeiture can constitute a pivotal or cornerstone factor in determining the pathway to take in plea bargaining, in certain circumstances. 5.In this Judgment, therefore, this Court will pronounce itself on the legality test applied to interrogate such agreements, dichotomized into procedural/formalities legality test and substantive legality test as follows:a.Whether the Plea Agreement has surmounted the procedural/formalities legality test. Under this broad question, there are five specific derivative questions as follows:i.Whether EACC has locus standi to challenge legality of the subject Plea Agreement.ii.Who are the proper parties to a Plea Agreement (reposed with the right to execute an enforceable Plea Agreement)? Under this principal question, there is a derivative question whether EACC must sign a Plea Agreement (in order to validate it for purposes of enforcement)?iii.Whether the Plea Agreement does not meet the statutory requirements set out in section 137D,137F & 137H of the CPC and in particular, whether EACC was consulted and whether DPP has an obligation in law to concur with EACC.iv.Whether the Plea Agreement meets the statutory requirements set out in section 137A 1(a), (b) & (2) of the CPC and in particular, whether a proper Plea Agreement must result in admission of criminal liability.v.Whether section 87(a) of the CPC can be invoked when the withdrawal option under section 137A(1)(b) of the CPC is the agreed option in a plea negotiation.b.Whether the Plea Agreement has surmounted the substantive legality test, which is whether there’s a sound legal basis and/or justification for the Plea Agreement, upon which the Plea Agreement dated 28th August 2025 can be adopted a Judgment of this Court, with emphasis on question whether this Plea Agreement has surmounted the triple-conditions test of public interest, interests of administration of justice and the need to avoid abuse of the legal process. Part II: Background 6.On the 27th day of August 2020, the Accused Persons were arraigned in Court and faced twenty-five (25) charges as follows:i.Under Count I, all the Accused Persons were charged with the offence of conspiracy to commit an economic crime contrary to section 47A (3) as read with section 48 of the Anti-Corruption and Economic Crimes Act, No. 3 of 2003 (hereinafter “ACECA”). The particulars of the offence are that between 29th October 2014 and 18th October 2016 in Migori County within the Republic of Kenya, the Accused Persons conspired to commit an economic crime to wit unlawful acquisition of public funds in the sum of Kshs. 73,474,376 from Migori County Government.ii.Under Count II, the 1st Accused Person was charged with the offence of conflict of interest contrary to section 42(3) as read with section 48 of ACECA. The particulars of this charge are that on 24th August 2016 at Migori County within the Republic of Kenya, being the Governor of Migori County, he knowingly acquired an indirect private interest where his son, Dan Achola Okoth, received Kshs. 10,874,938.55 from Deltrack ICT Services Limited in respect to an agreement between the Migori County Government and the said Deltrack ICT Services Limited.iii.Under Count III, the 1st Accused Person was charged with the offence of conflict of interest contrary to section 42(3) as read with section 48 of ACECA. The particulars of this charge are that between 20th March 2015 and 26th January 2016 at Migori County within the Republic of Kenya, being the Governor of Migori County, he knowingly acquired an indirect private interest where his daughter, Scarlet Susan Okoth, received Kshs. 1,950,132.80 from Jared Peter Odoyo Oluoch Kwaga in respect to an agreement between the Migori County Government and the companies associated with the said Jared Peter Odoyo Oluoch Kwaga.iv.Under Count IV, the 1st Accused Person was charged with the offence of conflict of interest contrary to section 42(3) as read with section 48 of ACECA. The particulars of this charge are that between 23rd December 2014 and 22nd September 2016 at Migori County within the Republic of Kenya, being the Governor of Migori County, he knowingly acquired an indirect private interest where his daughter, Scarlet Susan Okoth, received Kshs. 5,901,486.25 from Misoft Limited in respect to an agreement between the Migori County Government and Misoft Limited, Alinus Services, Kajulu Business Limited and Pesulus supplies.v.Under Count V, the 1st Accused Person was charged with the offence of conflict of interest contrary to section 42(3) as read with section 48 of ACECA. The particulars of this charge are that on 8th June 2016 at Migori County within the Republic of Kenya, being the Governor of Migori County, he knowingly acquired an indirect private interest where his, son Dan Achola Okoth, received Kshs. 1,806,700.00 from Misoft Limited in respect to an agreement between the Migori County Government and said Misoft Limited.vi.Under Count VI, the 1st Accused Person was charged with the offence of conflict of interest contrary to section 42(3) as read with section 48 of ACECA. The particulars of this charge are that on 26th September 2016 at Migori County within the Republic of Kenya, being the Governor of Migori County, he knowingly acquired an indirect private interest where his son, Jerry Zachary Okoth, received Kshs. 2,178,981.00 from Misoft Limited in respect to an agreement between the Migori County Government and said Misoft Limited.vii.Under Count VII, the 1st Accused Person was charged with the offence of conflict of interest contrary to section 42(3) as read with section 48 of ACECA. The particulars of this charge are that between 19th September and 21st September 2016, at Migori County within the Republic of Kenya, being the Governor of Migori County, he knowingly acquired an indirect private interest where his son, Dan Achola Okoth, received Kshs. 1,400,380.80 from Tarchdog Printers in respect to an agreement between the Migori County Government and said Tarchdog Printers Limited.viii.Under Count VIII, the 1st Accused Person was charged with the offence of conflict of interest contrary to section 42(3) as read with section 48 of ACECA. The particulars of this charge are that on 18th October 2016 at Migori County within the Republic of Kenya, being the Governor of Migori County, he knowingly acquired an indirect private interest where his son, Jerry Zachary Okoth, received Kshs. 1,120,000.00 from Tarchdog Printers in respect to an agreement between the Migori County Government and the said Tarchdog Printers Limited.ix.Under Count IX, the 9th Accused Person was charged with the offence of conflict of interest contrary to section 42(3) as read with section 48 of ACECA. The particulars of this charge are that between 5th October 2015 and 7th November 2016 at Migori County within the Republic of Kenya, being a pharmaceutical technologist employed by the Migori County Government, he held a direct private interest in the agreement between Migori County Government and Joyush Business, a business entity in which he is the proprietor, pursuant to which interest a sum of Kshs.16,832,155.00 was paid to the said Joyush Business by the Migori County Government.x.Under Count X, the 9th and 17th Accused Persons were charged with the offence of conflict of interest contrary to section 42(3) as read with section 48 of ACECA. The particulars of this charge are that between 7th March 2016 and 7th November 2016 at Migori County within the Republic of Kenya, being a pharmaceutical technologist employed by the Migori County Government and being a proprietor of Swyfcon Engineering and a Director of Swyfcon Engineering Limited, the 9th accused held a direct private interest in the agreements between Migori County Government and Swyfcon Engineering and Swyfcon Engineering Limited pursuant to which interest a sum of Kshs.31,186,651.65 was paid to the said entities.xi.Under Count XI, the 9th and 18th Accused Persons were charged with the offence of conflict of interest contrary to section 42(3) as read with section 48 of ACECA. The particulars of this charge are that between 21st June 2016 and 17th October 2016 at Migori County within the Republic of Kenya, being a pharmaceutical technologist employed by the Migori County government and being the proprietor of Dolphus Softwares and Director of Dolphus Softwares Limited, the 9th accused held a direct private interest in the agreements between Migori County Government and Dolphus Softwares and Dolphus Softwares Limited pursuant to which interest a sum of Kshs. 14,725,343.00 was paid to the said entities.xii.Under Count XII, the 1st, 6th, 7th, 8th, 9th, 10th, 11th, 12th, 13th, 14th and 15th Accused Persons were charged with the offence of money laundering contrary to section 3(1)(a) as read with section 16 of the Proceeds of Crime and Anti-Money Laundering Act (hereinafter “POCAMLA”). The particulars of this charge are that between 21st January 2014 and 9th February 2016 at Migori County within the Republic of Kenya, being the Governor of Migori County, proprietors of business entities, directors of limited liability companies and limited liability companies respectively, they engaged in an arrangement for the transfer Kshs. 256,703,688.00 to Jared Peter Odoyo Oluoch Kwaga on account of monies paid to the said entities by the Migori County Government whose effect was to disguise the source of the said money whilst they ought reasonably to have known the said money was part of proceeds of crime.xiii.Under Count XIII, the 1st, 2nd, 8th, 13th and 16th Accused Persons were charged with the offence of money laundering contrary to section 3(1)(a) as read with section 16 of POCAMLA. The particulars of this charge are that between 24thAugust 2016 and 21st September,2016 at Migori county in the Republic of Kenya, being the Governor of Migori County, son to the Migori County Governor and Director of Tarchdog Printers Limited and Deltrack ICT Services Ltd and limited liability companies respectively, they engaged in an arrangement for the transfer Kshs. 12,275,319.75 for the purchase and shipment of motor vehicles registration KCK 722B, chassis number JTMHV05J504200550 and KCK 997W, chassis number JTMHV05J404173096, make Toyota Land Cruisers, on account of monies paid to Tarchdog Printers Ltd and Deltrack ICT Services Ltd by the Migori County Government whose effect was to disguise the source of the said money whilst they ought to have known that the said money was part of proceeds of crime.xiv.Under Count XIV, the 1st, 3rd, 6th, 7th and 12th Accused Persons were charged with the offence of money laundering contrary to section 3(1)(a) as read with section 16 of POCAMLA. The particulars of this charge are that between 23rd December 2014 and 22nd September 2016 at Migori County within the Republic of Kenya, being the Governor of Migori County, daughter to the Migori County Governor and director of Misoft Limited and limited liability company respectively, they engaged in an arrangement for the transfer Kshs. 5,901,486.25 for payment of school fees to Aberdeen University, Scotland and maintenance and upkeep for Scarlet Susan Okoth on account of monies paid to the said company by the Migori County Government whose effect to disguise the source of the said money whilst they ought reasonably to have known that the said money was part of proceeds of crime.xv.Under Count XV, the 1st, 3rd and 6th Accused Persons were charged with the offence of money laundering contrary to section 3(1)(a) as read with section 16 of POCAMLA. The particulars of this charge are that between 20th March 2015 and 26th January 2016 at Migori County in the Republic of Kenya, being the Governor of Migori County, daughter to the Migori County Governor and a businessman respectively, they engaged in an arrangement for the transfer Kshs. 1,950,132.80 for the maintenance and upkeep of Scarlet Susan Okoth on account of monies paid by Migori County Government to companies associated with Jared Peter Odoyo Oluoch Kwaga whose effect was to disguise the source of the said money whilst they ought to have known that the said money was part of proceeds of crime.xvi.Under Count XVI, the 1st, 2nd, 6th, 7th and 12th Accused Persons were charged with the offence of money laundering contrary to section 3(1)(a) as read with section 16 of POCAMLA. The particulars of this charge are that between 8th June 2016 and 14th June 2016 within the Republic of Kenya, being the Governor of Migori County, son to the Migori County Governor and directors of Misoft Limited and a limited liability company respectively, they engaged in an arrangement for the transfer Kshs. 1,806,700.00 to Dan Achola Okoth for the payment of school fees to Curtin University, Australia, on account of monies paid to the said company by the Migori County Government, whose effect was to disguise the source of the said money whilst they ought to have known that the said money was part of proceeds of crime.xvii.Under Count XVII, the 1st, 4th, 6th, 7th and 12th Accused Persons were charged with the offence of money laundering contrary to section 3(1)(a) as read with section 16 of POCAMLA. The particulars of this charge are that on 26th September 2016 within the Republic of Kenya, being the Governor of Migori County, directors of Misoft Limited and a limited liability company respectively, they engaged in an arrangement for the transfer Kshs. 2,178,981.00 for the payment of school fees to Sheffield University, England, for Jerry Zachary Okoth on account of monies paid to the said company by the Migori County Government whose effect was to disguise the source of the said money whilst they ought to have known that the said money was part of proceeds of crime.xviii.Under Count XVIII, the 1st, 4th, 8th and 13th Accused Persons were charged with the offence of money laundering contrary to section 3(1)(a) as read with section 16 of POCAMLA. The particulars of this charge are that between 17th October 2016 and 19th October 2016 within the Republic of Kenya, being the Governor of Migori County, director of Tarchdog Printers Limited and a limited liability company respectively, they engaged in an arrangement for the transfer Kshs. 1,120,000.00 for the payment of school fees to Sheffield University, England, for Jerry Zachary Okoth on account of monies paid to the said company by the Migori County Government, whose effect was to disguise the source of the said money whilst they ought to have known that the said money was part of proceeds of crime.xix.Under Count XIX, the 1st, 2nd and 6th Accused Persons were charged with the offence of money laundering contrary to section 3(1)(a) as read with section 16 of POCAMLA. The particulars of this charge are that on 29th October 2014 at Migori County within the Republic of Kenya, being the Governor of Migori County and a businessman respectively, they entered into an arrangement for the transfer Kshs. 2,322,115.00 for the payment of school fees for Jerry Zachary Okoth at Sheffield University, England on account of monies transferred to Jared peter Odoyo Oluoch Kwaga by his entities on the appendix attached, paid by Migori County Government whose effect was to disguise the source of the said money whilst they ought to have known that the said money was part of proceeds of crime.xx.Under Count XX, the 1st, 5th, 6th, 7th, 8th, 9th and 12th Accused Persons were charged with the offence of money laundering contrary to section 3(1)(a) as read with section 16 of POCAMLA. The particulars of this charge are that between 17th August 2014 and 30th September 2015 within the Republic of Kenya, being the Governor of Migori County Government, the daughter of the Governor Migori County, directors, proprietors and a limited liability company respectively, they engaged in an arrangement for the purchase of Loresho Ridge House NO. C1 situated on L. R 21080/63, IR 197812 formerly L.R 21080/38 Title number: IR 74363, from Kenya Power Pension Fund at a cost of Kshs. 34,525,000.00 on account of monies paid to Dankey press, Mactebac contractors, Swyfcon Engineering and Misoft Limited by the Migori County Government whose effect was to disguise the source of the said money whilst they ought to have known that the said money was part of proceeds of crime.xxi.Under Count XXI, the 9th and 18th Accused Persons were charged with the offence of unlawful acquisition of public property contrary to section 45(1)(a) as read with section 48 of ACECA. The particulars of this charge are that between 21st June 2016 and 17th October 2016, within the Republic of Kenya, being a pharmaceutical technologist employed by the Migori County Government, proprietor of Dolphus softwares and director of Dolphus Softwares Limited and a limited liability company respectively, they unlawfully acquired public property in the sum of kshs. 14,725,343.00 from Migori County Government.xxii.Under Count XXII, the 9th and 17th Accused Persons were charged with the offence of unlawful acquisition of public property contrary to section 45(1)(a) as read with section 48 of ACECA. The particulars of this charge are that between 7th March 2016 and 7th November 2016 at Migori County in the Republic of Kenya, being a pharmaceutical technologist employed by the Migori County Government, proprietor of Swyfcon Engineering and director of Swyfcon Engineering Limited and a limited liability company respectively, they unlawfully acquired public property to wit Kshs. 31,186,651.65 from Migori Government.xxiii.Under Count XXIII, the 9th Accused Person was charged with the offence of unlawful acquisition of public property contrary to section 45(1)(a) as read with section 48 of ACECA. The particulars of this charge are that between 5th October 2015 and 7th November 2016 at Migori County, being a pharmaceutical technologist employed by the Migori County Government and a proprietor of Joyush Business, he unlawfully acquired public property in the sum of Kshs. 16,832,155.00 from Migori County Government.xxiv.Under Count XXIV, the 1st, 2nd, 3rd and 4th Accused Persons were charged with the offence of unlawful acquisition of public property contrary to section 45(1)(a) as read with section 48 of ACECA. The particulars of this charge are that between 29th October 2014 and 18th October 2016 at Migori County within the Republic of Kenya, being the Governor of the Migori County Government and the Governor’s children respectively, they acquired public property to wit Kshs. 38,949,376.00 from Migori County Government through companies and persons trading with the said Migori County Government as per the attached appendix.xxv.Under Count XXV, the 1st, 5th and 6th Accused Persons were charged with the offence of unlawful acquisition of public property contrary to section 45(1)(a) as read with section 48 of ACECA. The particulars of this charge are that between 19th September 2014 and 4th March 2015 at Migori County in the Republic of Kenya, being the Governor of the Migori County Government and the Governor’s daughter and a businessman respectively, they unlawfully acquired public property to wit Kshs. 34,525,000.00 from Migori County Government through companies and persons trading with the said Migori County Government as per the attached appendix, which money was used to purchase Loresho Ridge House No. C1 situated on LR 21080/63 IR 197812 formely L.R 210080/38, title number: IR 74363. 7.The matter progressed to hearing. 8.On the 1st day of July 2025 - pursuant to section 137C(2) of the CPC, this Court was notified by learned Prosecution Counsel Ms. Nora for the DPP, all learned Counsel representing the Accused Persons and learned Counsel Ms. Ng’ang’a for EACC, that they were all desirous of negotiating a Plea Agreement. 9.Pursuant to Article 159(2)(c) of the Constitution and section 137C(2) of the CPC, this Court was persuaded and proceeded to stay hearing of this matter, pending the outcome of the said negotiations. 10.On 28th August 2025, following negotiations where the DPP, Accused Persons and EACC participated, the DPP entered into a Plea Agreement with all the Accused Persons, in which the parties to the Agreement settled on the withdrawal option selected from the three options provided under section 137A(1)(b) of the CPC, namely withdrawal, promise not to prosecute and substitution of serious charges with lesser charges. 11.On 1st September 2025, the learned Prosecution Counsel Ms. Nora having intimated to this Court that parties have since entered into a Plea Agreement in relation to this matter which Ms. Nora formally presented, and learned Counsel Mr. Kilukumi, SC, & Ms. Mwanzia representing the 1st Accused; Ms. Kahiti holding brief for Mr. Ochwa for the 2nd Accused; Mr. Owino representing the 3rd Accused; Mr. Ario representing the 4th Accused; Ms. Kahiti representing the 5th Accused; Mr. Sagana & Mr. Mativo representing the 6th, 7th & 12th Accused Persons; Mr. Mussa holding brief for Mr. Kithi for the 8th, 9th, 10th, 11th, 13th, 14th, 15th, 16th, 17th & 18th Accused Persons; and Ms. Kiigi for EACC having severally and independently confirmed as much, this Court proceeded to issue directions accordingly. 12.On 5th September 2025, Counsel for EACC, Ms. Ng’ang’a and Mr. Gichangi intimated to this Court that EACC did not sign the Plea Agreement now on record on account of the fact that Counsel for EACC in this matter - Ms. Ng’ang’a - was not served with the Draft Plea Agreement to enable her seek further instructions from her principal. Consequently, this stayed determination of the other rival questions of law raised and directed that within a period of 3 days, the DPP formally shares the Plea Agreement filed in Court with the EACC to deal with it in the manner EACC deemed fit, within a period of 21 days. A mention was slotted on 30th September 2025 to confirm compliance and for further directions. 13.On 30th September 2025, Ms. Ng’ang’a for EACC confirmed that EACC was served with the Plea Agreement and intimated that upon seeking instructions, EACC opposed adoption of the Agreement by this Court and therefore declined to sign it. 14.In keeping with the negotiation spirit which informed the Plea Agreement, on 30th September 2025, this Court did exercise its discretionary power in favour of indulging the parties and EACC in further negotiations for a limited period, with hope that they will resolve the contentious issues on the negotiation table where they properly belonged. A mention was slotted on 24th October 2025 to confirm compliance and for further directions. 15.On 24th October 2025, parties and EACC reported that the further negotiations did not take place due to a miscommunication regarding the convener of the further negotiations. Whereas EACC expressed views that the convener should be the DPP, the DPP expressed the contrary view that the convener should have been EACC on grounds that it caused the further negotiations. Considering the respective constitutional and statutory powers of the DPP and EACC, this Court issued further directions that the convener should always be the DPP. By consent of the parties, this Court did exercise its discretionary power in favour of indulging the parties and EACC in further negotiations for a limited period of 14 days, to unlock the contentious issues. A mention was slotted on 7th November 2025 to confirm compliance and for further directions. 16.On 7th November 2025, the parties and EACC intimated that having taken divergent legal positions on the validity and/or legality of the Plea Agreement on record, they were unable come to a consensus on the reservations raised by EACC. 17.The opportunity to unlock the contentious issues having returned an unavailing result, it became incumbent upon this Court to proceed to the next logical step which is to determine whether to accept or reject the Plea Agreement, under the provisions of section 137D(3) of the CPC, of course, after hearing the parties and EACC. PART III: Summary of the Dpp’s Written Submissions in Support of the Motion to Adopt The Plea Agreement as a Judgment of this Court 18.In their written submissions dated 29th December 2025 and filed on even date, learned Prosecution Counsel Ms. Nora and Mr. Walusala, instructed by the DPP, proposed three juridical questions for determination:a.Whether an investigating officer can object to the adoption of a plea-bargaining agreement after being consulted;b.Whether the DPP has to concur with the views of an investigating officer after consultation; andc.Whether withdrawal of charge is allowed for under section 137A-O of the CPC. 19.Regarding the first proposed question whether an investigating officer can object to the adoption of a plea-bargaining agreement after being consulted, the learned Prosecution Counsel submit that Article 157 of the Constitution of Kenya, vests State powers of prosecution upon the Office of the Director of Public Prosecutions (hereinafter “the ODPP”) and that this, para materia, is restated by section 5 of the Office of Director of Public Prosecutions Act (hereinafter “the ODPP Act”). In the exercise of this power, it is advanced, the Director of Public Prosecutions (hereinafter “the DPP”) is not under the direction or control of any person, body or authority as provided for under Article 157(10) of the Constitution. For the proposition that the DPP is vested with power to continue or discontinue criminal proceedings, the COA holding in Roy Richard Elirema & anor v Republic [2003] eKLR is cited, where the COA stated that “We must hold that for a criminal trial to be validly conducted within the provisions of the Constitution and the Code, there must be a Prosecutor…who must play the role of deciding…whether to continue or discontinue the prosecution.” In the same vein, further reliance is placed upon Geoffrey K. Sang v DPP & 4 Others [2020] eKLR, where the Court in paragraph 132 stated that “The DPP is not bound to prosecute simply because the investigating agencies have formed an opinion that a prosecution ought to be undertaken. The ultimate decision of what steps ought to be taken to enforce the criminal law is placed on the officer in charge of prosecution… 133. Although the police may advise on the possible charges while forwarding the file to DPP…such opinion is merely advisory and not binding on the DPP... 134… the final word with regard to the prosecution lies with the DPP… 136. In my view, the discretion to be exercised by the DPP is not to be based on recommendations made by the investigative bodies. Therefore, the mere fact that the DPP’s decision differs from the opinion formed by the investigators is not a reason for interfering with the constitutional and statutory mandate of the DPP…as long as he takes into account the provisions of Article 157(11) of the Constitution as read with section 4 of the Office of Public Prosecutions Act, No. 2 of 2013.” Besides, the SCORK Guidelines in Joseph Lendrix Waswa v Republic [2020] eKLR, are cited where the Court at paragraph 75 stated that “The DPP must at all times retain control of and supervision over the prosecution of the case... 76.…a victim cannot and does not wear the hat of a secondary prosecutor.” 20.For the DPP, it is submitted that section 2 of the CPC defines a Plea Agreement as an agreement entered into between the prosecution and an Accused Person in a criminal trial in accordance with Part IV and that section 137 A (1) of the CPC provides that subject to section 137B, a prosecutor and an Accused Person or his representative may negotiate and enter into an agreement in respect of— (a) Reduction of a charge to a lesser included offence; (b) Withdrawal of the charge or a stay of other charges or the promise not to proceed with other possible charges. It is reasoned that section 137B of the CPC provides that a Plea Agreement on behalf of the Republic shall be entered into by the DPP or officers authorized by the DPP in accordance with Article 157(9) of the Constitution and any other person authorized by any written law to prosecute: Provided that in any trial before a subordinate Court, a public prosecutor may with the prior written approval of the DPP or officers subordinate to him, as the case may be, enter into a Plea Agreement in accordance with section 137A(1). In buttressing this, the holding in Republic v Kebwaro & 5 others [2024] eKLR is cited. 21.Regarding consultation, it is submitted that section 137D (a) of the CPC provides that a prosecutor shall only enter into a Plea Agreement in accordance with section 137A after consultation with the police officer investigating the case. 22.Concerning signing of Plea Agreements, it is submitted that section 137E (d) of the CPC provides that a Plea Agreement shall be in writing, and shall be signed by the prosecutor and the Accused Person or his legal representative, citing the holding in Republic v Kebwaro & 5 others [2024] eKLR. 23.Regarding participation of the Court, it is submitted that section 137C (3) of the CPC provides that the Court shall not participate in plea negotiation between a public prosecutor and an Accused Person. 24.It is submitted that sections 137F - 137H of the CPC provide the procedure to be undertaken by the Court to establish the competence of the Accused Person and also his/her understanding in having entered into a plea-bargaining agreement with the Prosecutor. 25.On the question of acceptance or rejection, it is submitted that section 137J of the CPC provides that it is only the Court that can reject a Plea Agreement and it shall record the reason for such rejection and inform the parties accordingly. 26.Further, it is provided that section 87 (a) CPC provides that in a trial before a subordinate Court a public prosecutor may, with the consent of the Court or on the instructions of the DPP, at any time before judgment is pronounced, withdraw from the prosecution of any person, and upon withdrawal if it is made before the accused is called upon to make his defence, he 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. 27.It is submitted that section 2 of the ODPP Act defines an investigative agency in relation to public prosecutions to mean among other agencies the Ethics and Anti-Corruption Commission (hereinafter “EACC”). 28.Regarding the second proposed question whether the DPP has to concur with the views of an investigating officer after consultation, it is submitted that the correspondences between EACC (investigator) and defence team in the run up to their agreement in the civil cases show that the criminal case herein was included in the negotiations. It is submitted that section 137D (a) CPC provides for the prosecutor to enter into a Plea Agreement after consultation with the police officer investigating the case and that the word used is consultation which means to seek input or advice. In this connection, the DPP submits that EACC was consulted and their input received and considered and included in the Plea Agreement. Further, it is argued that consultation does not mean concurrence, contending that whereas consultation means seeking input or advice, concurrence on the other hand means giving formal agreement or assent after consultation. In this respect, it is argued that the language of the drafters was carefully selected not to interfere with the constitutional mandate of the ODPP, so as not to require the consent of any person or authority for the commencement of criminal proceedings and in the exercise of his or her powers of functions and not to be subjected to direction or control of any person or authority. It is reasoned that allowing the objection by EACC on the pretext that an amorphous EACC committee which does not exist in law did not approve the outcome of the plea negotiations, will be going against the letter and spirit of the Constitution as that will be subjecting the decision of the ODPP to the amorphous committee. For the DPP, it is advanced that upon consultation of the investigating officer, the discretion exercised by the DPP should not and cannot be restricted to the recommendations or opinions made by the investigating officer and that the DPP is not bound to take a certain position in a plea-bargaining negotiation simply because an investigating officer wishes that his position prevails, as long as the DPP has taken into account public interest, the interest of the administration of justice and the need to avoid abuse of the legal process, placing reliance upon Geoffrey K. Sang v DPP & 4 Others [2020] eKLR and Joseph Lendrix Waswa v Republic [2020] eKLR. Besides, it is argued that the role of an investigating officer in plea bargaining negotiations ends once they give their views to the DPP, citing Geoffrey K. Sang v DPP & 4 Others [2020] eKLR. Further, it is submitted that consultation under section 137D of the CPC, does not elevate a victim or an investigator for that matter to wear the hat of a secondary prosecutor as was held in Joseph Lendrix Waswa v Republic [2020] eKLR. 29.Regarding the third proposed question whether withdrawal of charge is allowed for under section 137A-O of the CPC, it is submitted that section 137 A (1) (b) of the CPC allows for withdrawal of the charge by the prosecutor after plea bargaining negotiations and entering into an agreement with an Accused Person. In this connection, it is argued that once the DPP, having taken into account the provisions of article 157 (11) of the Constitution, the circumstances surrounding previous and present negotiations and deems it fit to withdraw a charge after plea bargaining negotiations, the investigating officer has no role whatsoever in that decision. It is further submitted that where the DPP, having entered into a plea-bargaining agreement with an Accused Person in line with sections 137 A (1) and 137B, and agreed to withdraw the charges before Court, if the Court admits the plea-bargaining agreement under sections 137F to 137J, then the matter is withdrawn under section 87 (a) CPC which is the appropriate section herein. 30.In conclusion, the learned prosecution Counsel urge that the Plea Agreement in this matter sits on all fours of the provisions of sections 137 A-O of the CPC, as the DPP exercised his powers within the ambits of article 157 of the Constitution after consulting the investigating officer and taking into consideration that the Accused Persons had already acquiesced to having property of more than three times the amount in the charge-sheet forfeited to the state in the related civil matter. 31.This Court is thus urged to adopt the Plea Agreement as a Judgment of this Court. PART IV: Summary of the Accused Persons’ Joint Written Submissions in Support of the Motion to Adopt the Plea Agreement as a Judgment of this Court 32.By consent of all the Accused Persons and their respective counsel, joint submissions were filed through the firm of Sagana, Biriq & Muganda Advocates LLP. 33.And so, in their joint written submissions dated 20th January 2026 and filed on even date, learned Counsel Mr. Sagana, instructed by the firm of Messieurs Sagana, Biriq & Muganda Advocates LLP proposed three questions for determination as follows:a.Whether criminal charges can be withdrawn under section 137A of the CPC;b.Whether the Prosecution has met the threshold for withdrawal of charges under section 87 as read together with the provisions of Section 137A (1) (b) of the CPC; andc.What is the role of the Investigating officer (EACC) in the Plea Agreement? 34.Learned counsel submits that the genesis of this matter is best captured by the Settlement Agreement entered into on 4th June 2024, between EACC and the 18 Accused Persons. It is submitted that the said Settlement Agreement provides in part that:“And Whereas Pursuant to financial investigations undertaken, the Commission established between the financial years 2013-2017, the 16 Defendant companies received a total of Kshs. 1,978,592,467/- being public funds from the County Government of Migori through tenders. Investigations also established that a total of Kshs. 73,474,3756.90/- was received by various persons that the Commission suspected was indirectly for the benefit of the Governor, County Government of Migori (2013-2017) Hon. Okoth Obado.And Whereas in the course of investigations, the County Government of Migori could not furnish the Commission relevant documents due to a fire incident that razed down the county stores. FURTHER at the time of commencing the unexplained wealth proceedings, the Defendants had not offered an explanation for receiving Kshs. 1,978,592,467/- from the County Government of Migori.And Whereas the Commission instituted two suits ACEC suit No. 32/2018 (OS) and ACEC suit No. E010/2021 for the forfeiture of unexplained assets of Kshs. 1,978,592,467/- and the recovery of Kshs. 73,474,376.90/- being proceeds of corruption, respectively. In the said suits, the Commission obtained injunction orders preserving 69 parcels of land and 2 motor-vehicles.And Whereas the Defendants filed affidavits to the Originating Summons together with various documents including Local Purchase/Service Orders, Contracts, Inspection & Acceptance Certificates, Consultancy Reports and Invoices showing award of tenders offering an explanation for the receipt of Kshs. 1,978,592,467/- from the County Government of Migori.And Whereas the Commission deduced verifiable works/projects from the documents filed by the Defendants, undertook a verification exercise of the said works and established that some works had been satisfactorily done. Further, the Commission gave the Defendants the benefit of doubt for tenders for supply of consumable items that were unverifiable after lapse of time, including toners, pens, cutlery, curtains and cereals.” 35.Learned counsel submits that subsequently, the Accused Persons were charged in this matter and the particulars of the charges are a mirror image of the allegations in HC ACEC Case No. E010 of 2021. 36.It is submitted that in HC ACEC Case No. E010 of 2021, the Commission sought to recover a landed property, Loresho Ridge L.R No. 21080/38, Motor-vehicles Registration Number KCK 997W and KCK 722B and various sums all cumulatively worth Kshs. 73,474,376.90 and that similarly, the sum total in all the 25 counts in this case is Kshs. 73,474,376.90. 37.It is submitted that the above notwithstanding, the Defendants requested for out-of-Court settlement of the two civil suits and the instant criminal matter particularly through the ADR mechanisms leading up to the above-cited Settlement Agreement, wherein the Defendants surrendered Eight (8) properties worth Kshs 235,600,000 (market value) and Two (2) motor vehicles in full and final settlement of the two claims. In this connection, it is highlighted that the various correspondence between EACC and Messrs Sagana Biriq & Co Advocates for and behalf of all the Accused Persons, which refer to the two civil suits and this criminal matter are part of the documents annexed to the Plea Agreement. 38.Notably, it is highlighted, the property known as Loresho Ridge L.R No. 21080/38 and Motor-vehicles Registration Number KCK 997W and KCK 722B which constitute part of the allegations in this case and HC ACEC Case No. E010 of 2021, are part of the properties forfeited in the Settlement Agreement. 39.In light of the foregoing and much deliberations between the respective parties, it is submitted that the ODPP accepted that parties enter into a Plea Agreement as envisioned by the provisions of section 137 of the CPC, with the outcome being that the charges in the criminal matter shall be withdrawn by dint of the provisions of Section 87 of the CPC. 40.It is submitted in this relation, that the signed copy of the Plea Agreement was filed in Court on 1st September 2025, and subsequently served upon EACC who raised their reservations inter alia stating that the Plea Agreement did not comply with the law. 41.Further, it is submitted that on 30th September 2025, the Court granted parties an opportunity to hold further negotiations with the view of coming to an amicable settlement, however, EACC was adamant that the Plea Agreement as filed did not conform with the law. It is submitted that the Accused Persons sought that the Plea Agreement be recorded as filed and consequently on 8th December 2025, the matter was fixed for hearing in respect to the Plea Agreement and that on the hearing day, the Accused Persons were placed under oath as the Court proceeded to assess their competence in entering into the agreement and that the Court went on to inform the Accused Persons of their rights including but not limited to the right to be presumed innocent until proved guilty, to a full trial and other ancillary rights and thereafter, the Prosecution laid down a narration of the factual basis leading up to the Plea Agreement as EACC and the Defence equally made their oral submissions in response thereto and that the Court directed that Parties file and serve their submissions in respect to the validity of the Plea Agreement. 42.Concerning the first proposed question whether Criminal charges can be withdrawn under section 137A of the CPC, it is submitted that the subject Plea Agreement, the DPP has subject to plea negotiations involving the Accused Persons, EACC and the DPP, invoked powers of the DPP enshrined in Article 157 of the Constitution as read together with the provisions of section 87 (a) of the CPC in electing to discontinue the criminal proceedings against the Accused Persons. It is submitted in this regard, that contrary to the submissions by EACC, no provision in law bars the withdrawal of criminal charges under section 87 of the CPC in plea negotiations and that in fact, section 137A of the CPC is clear that: “ (1) Subject to section 137B, a prosecutor and an Accused Person or his representative may negotiate and enter into an agreement in respect of — (a) reduction of a charge to a lesser included offence; (b) withdrawal of the charge or a stay of other charges or the promise not to proceed with other possible charges.” It is argued that a textual interpretation of the aforesaid provision reveals that contrary to the assertions by the EACC, the DPP is empowered to withdraw criminal charges even under plea negotiations and furthermore, the said provision does not expressly prescribe the manner the DPP elects to withdraw the charges and as such, the DPP has the discretion in deciding whether to discontinue the criminal proceedings subject to subsequent prosecution or not. It is argued that in the circumstances, the DPP is well within his mandate in electing to withdraw the charges against the Accused Persons in accordance with Section 87(a) of the CPC and EACC’s contention that withdrawing the criminal charges against the Accused Persons contradicts Section 137L of the CPC which provides for finality of Judgment entered through plea negotiations and that plea negotiations only contemplate a conviction on own plea followed by a judgment and a verdict on sentence, is without merit. It is argued that EACC’s contention is a misapprehension of the law ex facie, reasoning that section 137A(1) (a) & (b) of the CPC presents alternatives that the DPP may employ during plea negotiations one of them being, withdrawal of charges. It is argued that EACC has deliberately overlooked this provision and foresees plea negotiations to only be in respect to reduction of charges to lesser included offences. In further connection to this, it is argued that the finality of the judgment as per section 137L of the CPC not only applies to instances where a conviction on own plea has been passed, but also where there is has been a withdrawal of charges under section 137A(1)(b) of the CPC, implying that unless there was any form of fraud or misrepresentation, one cannot appeal the decision by the DPP to withdraw the charges. It is further argued that the contention by the EACC - in paragraph 25 of their submissions - is self-contradictory, where it argues that section 87 (a) of the CPC is not applicable in plea negotiations since, if permitted by the Court, it effectively terminates criminal proceedings and that plea negotiations only have one outcome - conviction on own plea. In this respect, learned counsel argues that the assertion by the EACC is misleading and that in fact, the inverse is true since a reading of section 87 (a) of the CPC reveals that withdrawal of charges against an Accused Person shall not operate as a bar to subsequent proceedings against him on account of the same facts and as such, the EACC is misleading the Court by implying that the DPP sole intention is to terminate the trial. 43.Regarding the second proposed question whether the Prosecution has met the threshold for withdrawal of charges under section 87(a) as read together with the provisions of Section 137A (1) (b) of the CPC, it is argued that Article 157 of the Constitution as read together with the provisions of sections 23 and 25 of the ODPP Act, is instructive, particularly in respect to the powers of the ODPP in either instituting or discontinuing legal proceedings. It is submitted that Article 157(6) (c) specifically provides that the DPP may discontinue at any stage before judgment is delivered, any criminal proceedings instituted by the DPP or taken over by the DPP. It argued further that on the other hand, Article 157(11) outlines the threshold to be met before the DPP can withdraw from prosecuting the accused to wit: the DPP 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. 44.It is argued that Black’s Law Dictionary defines the phrase “public interest” as the general welfare of the public that warrants recognition and protection and that in Mohammed Gulam Husseign Fazal Karmali & Hyundai Motos Kenya Limited v Chief Magistrate’s Court Nairobi & Attorney General [2006] KEHC 3433 [KLR], the Court held as follows: “Public interest is also capable of being defined by the answer to the following questions: [1] If the interest affected has a general Application; [2] Is there a collect ion or commercial interest and are public moneys being expended and to what extent and purpose in the interest under scrutiny; [3] Whether the public or community at large can reasonably and legitimately expect fair play in the decision making process.” It is argued that one of the tests that the DPP applies before making the decision to charge is that of the public interest and accordingly, as was held by this Honourable Court in Director of Public Prosecutions v Mutua & another (Anti-Corruption and Economic Crimes Case E027 of 2024), if criminal proceedings are instituted in public interest at a time when investigations reveal evidence sufficient to sustain the charges, then it will equally be in the self-same public interest to discontinue the criminal proceedings whenever it emerges from further investigations or inquiries or new evidence or circumstances which can no longer sustain the criminal proceedings or which render the continued prosecution a violation of the Constitution and/or statutes thereunder. In this connection, it is the Defence’s submission that whereas it might have been in the public interest that the DPP made the decision to prefer charges as against the Accused Persons, circumstances have since changed warranting the ODPP to review its decision to prosecute or not to prosecute as envisioned by Section 5(4) (e) of the ODPP Act and that as narrated above, the Accused Persons have since surrendered to the State, Eight (8) properties worth the sum of Kshs 235,600,000 (market value), and Two (2) motor vehicles which amount is more than thrice the amount alleged to be proceeds of corruption and that worth noting is that section 48 (1) (b) of ACECA provides that in addition to the discretional sentence prescribed in Section 48 (1) (a) of the Act, the Accused Person shall be liable upon conviction and the determination that he/she received a quantifiable benefit result of the conduct that constituted the offence, to pay a mandatory fine twice the sum of the amount of the benefit and needless to state, the Accused Persons have already exceeded the aforesaid sentence in respect to the restitution. Learned counsel urges that it cannot be gainsaid that the conduct by the Accused Persons in forfeiting the aforesaid assets is well within the precincts of public interest in that monies have been returned to the state and that a reasonable member of the public is able to perceive fair play especially in terms of the amounts alleged to be lost vis-à-vis the amounts returned to the state and accordingly, it will be prudent for the State to withdraw the charges and collect the restituted amount rather than embarking on a full trial that might fail to adduce evidence sufficient to warrant a conviction. Further, it is argued that the public interest will still be preserved even with the State electing to withdraw the charges given that by dint of Section 87(a) of the CPC, the withdrawal of the charges before the accused is put to their defence as is the case here, is not a bar to subsequent proceedings against the accused on account of the same facts. It is urged that in any event, the Court of Appeal in Christopher Ndarathi Murungaru v Kenya Anti-Corruption Commission & another [2006] eKLR held as follows as regards public agitation vis-à-vis public interest: “Lastly, before we leave the matter, Professor Muigai told us that their strongest point on the motion before us is the public interest. We understood him to be saying that the Kenyan public is very impatient with the fact that cases involving corruption or economic crimes hardly go on in the Courts because of Applications like the one we are dealing with. Our short answer to Professor Muigai is this. We recognize and are well aware of the fact that the public has a legitimate interest in seeing that crime, of whatever nature, is detected, prosecuted and adequately punished. But in our view, the Constitution of the Republic is a reflection of the supreme public interest and its provisions must be upheld by the Courts, sometimes even to the annoyance of the public.” 45.Regarding the yardstick of interests in the administration of justice, it is argued that the overarching objective of the interests of administration of justice is to do justice to all irrespective of status and avoid abuse of the legal process and it follows that the public interest in the administration of justice requires that the Court protects its ability to function as a Court of law by ensuring that its processes are used fairly by state and citizen alike and through this the public confidence in the Courts is boosted. In this respect, it is the defence submissions that withdrawal of the charges against the Accused Persons not only serves the public interest but also the interest in the administration of justice and the ultimate goal in this matter is to ensure that the ends of justice are met, particularly funds belonging to the state alleged to be lost are recovered and that as already stated above, without necessarily admitting any wrong on their end, the Accused Persons have already returned to the state assets worth over Kshs. 235 million in an effort to settle all the claims against them and this Court is urged to find that the the said restitution serves the interests of justice as opposed to embarking on a long and cumbersome trial that might end up with no conviction. Further, it is submitted that it is important to note that the criminal case has prolonged for over six years and the Prosecution has only managed to present one out of the possible fifty-six witnesses, who is under examination-in-chief and the prosecution has presented bulky documents exceeding 10,000 pages that need to be perused and reviewed by both the Defence and the Court and as such, the Court’s time and resources will be spent prudently through plea-agreement as the same is still sanctioned by the law. 46.Regarding the need to prevent and avoid abuse of the legal process, it is argued that it is closely related to the interest of administration of justice and that in the Australian decision namely Jago v District Court of NSW and Others [1989] HCA 46, which was adopted by Odunga, J. (as he then was) in Republic v Director of Public Prosecution & Ethics and Anti-Corruption Commission Ex Parte Chamanlal Vrajlal Kamani, Deepak Chamanlal Kamani & Rashmi Chamanlal Kamani [Judicial Review Application 78 of 2015 , the Court stated as follows: “An abuse of process occurs when the process of the Court is put in motion for a purpose which, in the eye of the law, it is not intended to serve or when the process is incapable of serving the purpose it is intended to serve.” In this context, it is argued that whereas the institution of legal proceedings against the accused herein for suspected criminal activities cannot in itself be termed as an abuse of the legal process, the attendant processes might constitute an abuse and that since the institution of the legal proceedings, circumstances have changed making the continuation thereof to be an abuse of the Court process and it follows that the Accused Persons have since forfeited to the State assets worth more than triple what was alleged to be lost and subjecting them to further prosecution defeats the whole purpose of the restitution and furthermore, one cannot be faulted for perceiving an ulterior motive in further prosecution given that more of the Court’s time and resources will be spent whereas the objectives of the criminal justice system in this particular instance have already been achieved through the restitution, citing Kuria & 3 Others v Attorney General [2002] where it was held that “The Court has power and indeed the duty to prohibit the continuation of the criminal prosecution if extraneous matters divorced from the goals of justice guide their instigation.” 47.Turning to the third proposed question on the role of the Complainant in the Plea Agreement, it is submitted that sections 137 A-O of the CPC as read together with the provisions of the CPC (Plea Bargaining) Rules, 2018 outline the procedure to be followed in the plea-agreement process and notably, section 137C provides that an offer for a Plea Agreement may be initiated by either a prosecutor or an Accused Person/his legal representative. It is submitted that the Accused Persons through their legal representatives reached out to the DPP seeking such an engagement prompting several meetings that ultimately resulted to the tabling of the Plea Agreement before the Court and section 137D of the CPC requires that the DPP consults with the investigator/victim before entering into a Plea Agreement and that it follows that the DPP indeed sought the involvement of the Commission in the entire process by inviting its representatives to the meetings where the discussions between all the respective parties were being held and that this position was affirmed by the EACC’s representatives in Court and further corroborated by an extract of the minutes of the meetings/attendance register held at the DPP’s offices. It is thus urged that EACC was indeed consulted in the discussion leading up to the formulation of the Plea Agreement in accordance with Section 137D of the CPC. Learned Counsel has fully associated with the position taken by the DPP - at paragraphs 32 to 38 of their submissions - that the consultation in respect to Section 137 D refers to the seeking of input/advice and not necessarily concurrence and that holding otherwise would mean that the DPP’s decisions are at the mercies of the EACC, a direct contravention of the constitutional principle of institutional independence. In this light, it is submitted that it is the EACC’s contention - at paragraph 13 of their submissions - that section 137D dictates that the EACC in its consultative role, is required to relay crucial information relating to the nature and circumstances of the offence and other related issues and the same ought to be included in the Plea Agreement which is eventually presented by the prosecution as the factual basis of a Plea Agreement before the Court. In this connection, it is submitted that nothing could be further from the truth and learned counsel associates with the DPP’s position - at paragraph 38 of their submissions - that the DPP is not bound to take a certain position in a plea-bargaining negotiation simply because an investigating officer wishes for that position to be taken. Further reliance is placed upon Geoffrey K. Sang -Vs- DPP & 4 Others (2020) eKLR where it was held that “In my view, the discretion to be exercised by the DPP is not based on recommendations made by the investigative bodies. Therefore, the mere fact that the DPP’s decision differs from the opinion formed by the opinion framed by the investigators is not reason for interfering with the constitutional and statutory mandate of the DPP… as long as he takes into account the provisions of Article 157(11) of the Constitution as read with section 4 of the Office of Public Prosecutions Act.” Besides, it is submitted that in any event, the DPP’s concession - at paragraph 42 of their submissions - that the EACC gave its views and the same were taken into consideration especially in respect to critical information as to the conduct of the civil cases related to the present case and accordingly, it is the defence’s submission that EACC not being a primary party to plea negotiations only exercises a consultative role and in the instant case, evidence in the form of correspondences, minutes of meetings and attendance registers has been presented to show that indeed the EACC was not only consulted but was also actively involved in the plea negotiations leading up to the formulation of the Plea Agreement. 48.Finally, it is urged that the failure and/or refusal by the EACC to sign the Plea Agreement does not in any way vitiate the contents therein since as per section 137E (e) of the CPC, the signature of the complainant is only necessary if a compensation order contemplated under section 175 (2)(b) CPC has been included in the agreement and in the present case, no order in respect to compensation has been included as restitution had been made. 49.This Court is thus urged to find that Plea Agreement has passed the legality test and adopt it as a judgment of this Court. PART V: Summary of the 1St Accused Person’s Supplementary Written Submissions in Support of the Motion to Adopt the Plea Agreement as a Judgment of this Court 50.In supplementation to the foregoing Accused Persons’ joint Submissions, learned Counsel Mr. Kilukumi, SC, and Ms. Mwanzia, instructed by the firm of Messieurs Kilukumi Advocates LLP, filed joint written submissions for the 1st Accused Person. 51.In their said written submissions dated 20th January 2026 and filed on even date, the said learned Counsel replicated the historical factual matrix set out in the common submissions above. It is submitted that despite being present and actively participating in the meetings leading up to the Plea Agreement, EACC declined to sign the Plea Agreement and contested the validity of the Plea Agreement filed in Court. It is submitted that since the Plea Agreement is duly executed between the Accused Persons and the DPP, it satisfies the requirements of sections 137A-O of the CPC and ought to be adopted by this Court and that refusal by the EACC to sign the agreement, despite its participation in the negotiations, does not negate the validity of the Plea Agreement under the law. 52.Regarding conformity of the Plea Agreement with the law, it is submitted that the Plea Agreement is duly executed by the Accused Persons and the DPP seeks a withdrawal of charges against the Accused Persons under Section 87(a) of the CPC, arguing that this is permissible under section 137A(1)(b) of the CPC and in this connection, it is argued that it is beyond dispute that the CPC envisions withdrawal of charges as a legitimate outcome of plea bargaining and the argument advanced by the EACC that withdrawal under Section 87(a) of the CPC is inconsistent with section 137L of the CPC on finality, is fundamentally flawed. It is argued that a plain reading of section 137L of the CPC reveals that it must be construed together with section 137H (2) of the CPC, which applies only where the plea bargain involves a plea of guilty with the reduction of a charge to a lesser offence under Section 137A(1)(a) of the CPC and in such cases, the Court proceeds to convict and sentence the accused and the sentence meted out is final and not subject to an appeal. It is submitted that section 137L of the CPC speaks to the “finality of judgment” where a sentence has been passed pursuant to a Plea Agreement and it is axiomatic that a sentence can only follow a conviction. It is argued that in the present case, the prosecution seeks withdrawal of the case against the Accused Persons under Section 87(a) of the CPC, which produces no conviction and no sentence and the doctrine of finality of Judgment in this context is therefore wholly irrelevant and that EACC’s attempt to extend Section 137L to withdrawal is legally untenable and unsupported by precedent. It is thus reasoned that withdrawal of charges under section 87(a) of the CPC, when undertaken within the framework of a Plea Agreement under section 137A(1)(b) of the CPC, is fully consistent with the letter and spirit of sections 137A–137O of the CPC and it does not contravene any guiding principle in law and that to hold otherwise, is to misconstrue the statutory scheme. 53.Regarding the role of the DPP in vis-a-vis the role of the investigator in the plea bargain process, it is submitted that the independence, discretion and control over prosecutions including Plea Agreements by the DPP has been laid out by the High Court in Republic v Attorney General & 3 others; Pattni (Ex parte) [2013] KEHC 6092 (KLR), where the Court held that “90. One may wish to raise the question as to whether, having upheld the 2nd Respondent’s right to terminate the plea bargaining negotiations and decided to carry on with the prosecution of the accused, the finding of the continued prosecution unconstitutional is not a contradiction of positions by this Court. I do not think so. This Court has found in favour of the independence of the 2nd Respondent in relation to the institution, control and termination of prosecution, including plea bargaining, as mandated under Article 157 of the Constitution and Section 137 of the Criminal Procedure Code. This finding of itself does not, however, absolve the 2nd Respondent from adherence with the Bill of Rights as relates to the rights of an Accused Person. That is the clarification that I find necessary to underscore, to obviate any confusion in the two sets of findings.” Further reliance is placed upon Supreme Court holding in Waswa v Republic [2020] KESC 23 (KLR), where it was held that “74. At this point, we feel compelled to make a few observations on the powers of the DPP. article 157(1) of the Constitution establishes the office of DPP. The State’s prosecutorial powers are vested in the DPP under article 157 of the Constitution. That office, under sub-article 10, neither requires the consent of any person to institute criminal proceedings nor is it under the direction or control of any person or authority. These provisions are also replicated in Section 6 of the Office of the Director of Public Prosecutions Act, 2013. This office is the sole constitutional office with the powers to conduct criminal prosecutions.” It is submitted that section 137B of the CPC is explicit that a Plea Agreement shall be entered into between the Republic through the DPP or officers authorised by the DPP and that section 137A (1) of the CPC lays out the parties in a Plea Agreement as the prosecutor and the accuse and further, that the CPC (Plea Bargaining Rules) (hereinafter “the CPC Rules”), Rules 2 and 6, identify clearly the parties to a plea as the prosecutor and the Accused Person. It is submitted that the role of the investigator is limited and is confined strictly to consultations and that the rules are clear under Rule 7(2) of the CPC Rules, that the prosecutor shall have sole discretion on whether to enter into a Plea Agreement with the Accused Person and that this clearly shows that there is a limit to the engagement and involvement of the investigator to the plea bargain process. It is submitted that in this case, EACC as the investigator was notified of and attended through representatives, numerous meetings which were convened by the DPP, their opinion was sought at various stages and the representatives given time on several occasions to seek instructions from EACC and that EACC made its position clear, there was communication between the EACC and the DPP that shows evidence of consultations in addition to the meetings held. It is further submitted that EACC was consequently furnished with a copy of the agreement and afforded an opportunity to present their views. It is urged that consultation does not equate to veto power neither does it equate to concurrence and that the CPC does not mandate that the DPP to adopt the investigators’ views and the CPC Rules, under Rule 7 (2) specifically lay out that the decision on the Plea Agreement is under the sole discretion of the DPP despite the consultation with the investigator. It is argued that Article 157(6) and (10) of the Constitution vests the power to institute, continue, or discontinue criminal proceedings exclusively in the DPP, free from direction or control of any person. The DPP’s discretion is therefore constitutionally insulated, citing the cementing of this position by Mativo. J in Kennedy Otieno Agwaro & 2 others v Director, Criminal Investigations Department & 2 others [2017] KEHC 8820 (KLR), where it was held that “Article 157 (10) of the Constitution of Kenya 2010 requires the DPP to act independently in the discharge of his duties. This above position is also replicated under Section 6 of the Office of the Director of Public Prosecutions Act.[16] The DPP is to not only act independently in the exercise of his functions, but also ought not to be perceived to be acting under the direction or instructions or instigation of any other person. There should be no reasonable basis to believe that the prosecution was instigated by another person.” 54.Concerning the parties who must sign the Plea Agreement, it is argued that there is no statutory provision requiring the investigator to sign the Plea Agreement to make it valid and that section 137E(d) of the CPC and Rule 14(1) of the CPC Rules strictly lists the parties who should sign the agreement as the prosecutor and the Accused Person or his legal representative and that the participation of the investigator in signing the Plea Agreement is not provided for or required under the legal regime governing Plea Agreements and that the only time a complainant is required by law to sign a Plea Agreement, is where such agreement provides for compensation in the Plea Agreement. Rule 14(3) of the CPC Rules provides that “(3) Where the Plea Agreement includes a compensation clause, the complainant shall sign the compensation clause of the agreement” Accordingly, it is reasoned that since there was no compensation in this agreement, EACC is not required to sign the Plea Agreement and the Plea Agreement duly executed between the accused and the DPP is lawful, valid, and firmly grounded in Article 157 of the Constitution and Sections 137A–137O of the CPC and the CPC Rules and the refusal by the EACC to append its signature, despite active participation in negotiations, cannot invalidate the agreement, for the law vests prosecutorial discretion exclusively on the DPP, free from any external interference. 55.Regarding the question whether the withdrawal is in public interest, it is submitted that the decision by the DPP to have a plea bargain agreement withdrawing the cases against the accused seeks further to safeguard public interest, arguing that this case has been before the Court for six (6) years with only one witness giving his evidence in chief and its continued prosecution consumes public funds and judicial time which should all be zealously guarded, citing the reasoning of Mutava J, in Republic v Attorney General & 3 others; Pattni (Ex parte) [2013] KEHC 6092 (KLR), where it was stated that “92. Indeed, I am gratified to note that although my judgment has been arrived at purely on the basis of analysis of facts, evidence and the law, the conclusion reached echoes opinions already made public by commentators who have raised concerns as to the cost and time implications of inordinate delay in getting old graft cases finalized. In a headline report published in “the Standard” newspaper of 11th July 2011, the Chief Justice of the Republic of Kenya Dr. Willy Mutunga was reported to have said: “We are either serious (on old graft cases) or count our losses, drop them and stop throwing good money after bad. KACC should initiate public discussions and seek national consensus”. 93. In the same newspaper, the then KACC Director Dr. Patrick Lumumba was quoted as stating:” “Old corruption cases must be finalized. Goldenberg cases are in Court. We will not be prisoners of our past, but the rear view mirror will be in us”. It is argued that Article 157 of the Constitution vests the exclusive authority to institute and discontinue criminal proceedings in the DPP and this discretion is not mechanical but a constitutional safeguard designed to ensure that prosecutorial decisions are exercised judiciously, with due regard to the public interest, the interests of the administration of justice, and the need to prevent abuse of legal process. It is argued that the DPP is not compelled to prosecute every matter presented, but rather to weigh the facts and circumstances of each case to determine whether prosecution serves justice or merely perpetuates unnecessary litigation, citing the reasoning in Republic v Nyakundi [2023] KEHC 1063 (KLR). It is submitted that EACC’s mere assertions that the plea negotiated is against public interest are not sufficient, having failed to illustrate the violation of any of the principles set out in the Nyakundi decision. In this connection, it is argued that the Accused Persons have already, through a civil process before the High Court and with a binding agreement with the EACC, forfeited assets to the State valued at more than three times the amount allegedly lost and that this forfeiture was voluntary and adopted by the Court and EACC expressly acknowledged the adequacy of the restitution given and that the State has therefore been compensated far beyond the alleged loss, achieving the very objective of recovery and deterrence and that no prejudice will be suffered by the general public if the Plea Agreement is adopted by the Court. 56.Finally, this Court is urged to adopt the Plea Agreement as signed and filed before this Court, uphold the constitutional independence of the DPP, and order withdrawal of the charges under Section 87(a) of the CPC, reasoning that such a course affirms the rule of law, protects the integrity of the criminal justice system, and ensures that prosecutions remain instruments of justice rather than oppression. PART VI: Summary of the 2nd & 5th Accused Persons’ Joint Supplementary Written Submissions in Support of the Motion to Adopt the Plea Agreement as a Judgment of this Court 57.In addition to the foregoing Accused Persons’ joint Submissions, learned Counsel Mr. Ochwa, Mr. Owino, Ms. Kahiti & Mr. Awino instructed by the firm of Messieurs Cootow & Associates filed joint written submissions for the 2nd and 5th Accused Persons. 58.In their said written undated submissions, the said learned Counsel replicated the historical factual matrix set out ion the common submissions highlighted above. I find it unnecessary to regurgitate. 59.The learned counsel proposed the following two questions for determination:a.Whether the Plea Agreement meets the requirements of section 137A-O of the CPC.b.Whether the Prosecution has met the threshold for withdrawal of charges under section 87A as read together with the provisions of Section 137A (1)(b) of the CPC & whether the Plea Agreement is in public interest. 60.Concerning the first proposed question whether the Plea Agreement meets the requirements of section 137A-O of the CPC, substantially, the arguments advanced by learned counsel for the 1st accused and the arguments advanced in the common submissions, mirror the arguments advanced by counsel for the 2nd and 5th Accused Persons. I thus find it unnecessary to regurgitate. And so are the arguments advanced in respect to the question whether Plea Agreement meets requirements under sections 137A(1) a & b of CPC; whether the Prosecution has met the threshold for withdrawal of charges under section 87 as read together with the provisions of Section 137A (1) (b) of the CPC; and whether the Plea Agreement is in public interest. I further find that the learned counsel have cited the same authorities cited in the common submissions and the submissions filed by the 1st accused and in this connection, I find it unnecessary too to replicate, except the decision in Kennedy Otieno Agwaro & 2 others v Director, Criminal Investigations Department & 2 others [2017] KEHC 8820 (KLR), where it was reasoned that “Article 157 (10) of the Constitution of Kenya 2010 requires the DPP to act independently in the discharge of his duties. This above position is also replicated under Section 6 of the Office of the Director of Public Prosecutions Act.[16] The DPP is to not only act independently in the exercise of his functions, but also ought not to be perceived to be acting under the direction or instructions or instigation of any other person. There should be no reasonable basis to believe that the prosecution was instigated by another person.” 61.Accordingly, this Court is urged to adopt the Plea Agreement as signed and filed before this Court, uphold the constitutional independence of the DPP, and order withdrawal of the charges under Section 87 of the CPC, reasoning that such a course affirms the rule of law, protects the integrity of the criminal justice system, and ensures that prosecutions remain instruments of justice rather than oppression. PART VII: Summary of Eacc’s Response to the Motion to Adopt the Plea Agreement and the Attendant Written Submissions in Opposition to the Motion to Adopt the Plea Agreement as a Judgment of this Court 62.The said Plea Agreement was opposed by EACC. 63.In her written submissions dated 9th January 2026 and filed on even date, learned Counsel Ms. Ng’ang’a, instructed by the EACC, proposed four questions for determination as follows:a.Whether the Plea Agreement filed in Court meets the requirement of section 137 A-O of the CPC;b.Whether the Settlement Agreement entered into in ACEC Civil Suit No. 32 of 2018 and ACEC civil suit No. E010 of 2021 had any bearing in the criminal matter;c.Whether section 87 (a) of the CPC can be used to withdraw a matter that has been resolved through a Plea Agreement; andd.Whether the Plea Agreement is in the public interest. 64.Regarding the first proposed question whether the Plea Agreement filed in Court meets the requirement of section 137 A-O of the CPC, it is submitted that the CPC provides for the form in which a Plea Agreement should take and this Court is urged to find that the Plea Agreement before this Court does not conform to the provisions of Section 137 A-O specifically in the following three aspects.a.First, that the Plea Agreement does not meet the statutory requirements set out in section 137A 1(a) & (b) CPC. It is reasoned that section 137A (1)(a) provides that a Plea Agreement may be entered into respect of reduction of a charge to a lesser included offence and the subject Plea Agreement does not provide for reduction of charges to a lesser included offence as contemplated under Section 137A (1)(a). It is argued that section 137A (1)(b) of the CPC provides that a Plea Agreement may be entered into in respect of withdrawal of the charge or a stay of other charges or the promise not to proceed with other possible charges. It is argued that the impugned Plea Agreement provides for withdrawal of all the charges under section 87(a) of the CPC and that withdrawal under this section is not a bar to subsequent proceedings against an Accused Person on account of the same facts, which contravenes the finality of plea negotiations as spelt out under Section 137L of the CPC.b.Second, that the Plea Agreement does not meet the statutory requirements set out in section 137A (2) CPC. It is argued that section 137A(2) of the CPC provides that a Plea Agreement entered into under subsection (1)(a) or (b) may provide for the payment by an Accused Person of any restitution or compensation and this provision clearly shows that any form of restitution should be within the confines of the criminal proceedings. EACC submits that the impugned Plea Agreement is unlawfully founded on restitution which has been elevated to be the primary basis of the negotiated outcome and this Court is invited to look into paragraph 12, (a) to (f) of the Plea Agreement and note that the same makes reference to Settlement Agreement entered into in two civil suits namely ACEC Civil Suit No. 32 of 2018 and ACEC civil suit No. E010 of 2021, as the only issue parties agreed upon and in this regard, it is argued that restitution in a civil case cannot substitute the requirement for a factual admission of criminal liability and the same can however be considered by the Court during sentencing as a mitigating factor as provided for under section 137I (2)(d). It is argued that the Plea Agreement before Court treats restitution as though it cures the absence of a factual admission of guilt, which is a misapprehension of the law and that anchoring a Plea Agreement on restitution alone undermines the objectives of plea bargaining, particularly, accountability, transparency, and public interest - especially in Anti-Corruption matters.c.Third, that the Plea Agreement does not meet the statutory requirements set out in section 137D,137F & 137H. It is submitted that section 137D of the CPC provides that the prosecutor shall enter a Plea Agreement in accordance with section 137A after consultation with the police officer investigating the case, with due regard to the nature of and circumstances relating to the offence, the personal circumstances of the Accused Person and the interests of the community. It is argued that this provision is couched in mandatory terms, which demonstrates the importance of consultation with the investigating officer and that consultation cannot be substituted by mere attendance of the investigating officer in meetings as alluded to by the DPP and that the Plea Agreement should reflect the outcome of the consultation. It is submitted that the investigating officer has a role in plea negotiations to bring across on the negotiation table, the nature and circumstances relating to the offence, the personal circumstances of the Accused Person and the interests of the community and that after this crucial information has been provided by the Investigating Officer, it should be included in the Plea Agreement which is eventually presented by the prosecution under section 137F of the CPC before the Court as the factual basis of a Plea Agreement to the Court’s satisfaction and that it is the said factual basis that the Court relies on in accepting the Plea Agreement as provided for under section 137H of the CPC and in the absence of the factual basis, a Court cannot accept a Plea Agreement as envisaged by section 137H 1(a) of the CPC. In this regard, it is argued that although the DPP submits that EACC was consulted and that EACC was invited for all meetings and that minutes of the meetings are filed in Court, there is no evidence availed of the purported participation by EACC and there are no minutes attached as alleged in the DPP’s submissions and that what was attached are attendance registers, which cannot be deemed to be consultation and participation as envisaged under section 137D of the CPC. It is argued that consultation with the investigating officer is and should not be just mere attendance as alluded to by the DPP. 65.In relation to the second proposed question whether the Settlement Agreement entered into in Nairobi High Court ACEC Civil Suit No. 32 of 2018 and Nairobi High Court ACEC civil suit No. E010 of 2021 had any bearing in the criminal matter, it is submitted that in executing its mandate under section 11(j) of the Ethics & Anti-Corruption Commission Act, EACC filed two civil suits namely Nairobi High Court ACEC Civil Suit No. 32 of 2018; and Nairobi High Court ACEC Civil Suit No. E010 of 2021, for the recovery of corruptly acquired assets and that subsequently, parties engaged in Alternative Dispute Resolution which resulted in a Settlement Agreement which was filed and adopted by the Court. It is argued that section 193A CPC provides that Criminal and Civil Proceedings can proceed concurrently and that the Settlement Agreement entered into in the civil cases should therefore not be used to compromise the pending criminal case. It is reasoned that at Paragraph 43 of the DPP’s submissions, it is indicated that the correspondence between EACC and the defence team show that the criminal case herein was included in the Settlement Agreement entered into in the two civil cases - a clear indication of usurpation of the DPP’s mandate. It is contended that the Settlement Agreement attached to the Plea Agreement which is the final outcome of the ADR, does not make reference of the Criminal matter whatsoever and therefore the indication that EACC usurped DPP’s mandate in the civil negotiations is unfounded and that the aspect of the said correspondence was also alluded to by the defence in their oral submissions in Court. It is argued that according to the defence, the criminal matter was a subject of discussion in the ADR by virtue of having been cited in the reference section, in the correspondence regarding the ADR in the two civil suits. In this connection, it is argued that in execution of its mandate, EACC investigated the allegation as reported and the investigation revealed commission of corruption offences and also revealed that there were unexplained assets and proceeds of corruption acquired by the some of the suspects and consequently, the criminal case and the two civil suits for recovery of unexplained assets and proceeds of corruption commenced and a singular investigation brought forth the criminal case and the two civil suits and as a way of Commission’s referencing, the three matters fell under the same subject, hence the three appearing in the ADR correspondences, but the criminal case was not discussed in the ADR negotiations undertaken in the two civil suits and the same is evident from the Settlement Agreement annexed to the impugned Plea Agreement. It is argued that in any event, the only avenue provided for ADR in criminal matters is through plea negotiations as provided for under section 137A-O CPC and as such, whether the matter was in the reference or not, cannot be implied that for that reason it formed part of the ADR negotiations. 66.Turning to the third proposed question whether section 87 (a) of the CPC can be used to withdraw a matter that has been resolved through a Plea Agreement, it is argued that plea negotiations are provided for under section 137A-O of the CPC and that the impugned Plea Agreement - at paragraph 12(g) - provides that the “prosecution wishes to withdraw all the charges under section 87A of the CPC.” It is argued that section 137L of the CPC provides for finality of judgement passed under section 137 A-O of the CPC and provides that “no appeal shall lie therefrom except as to the extent of legality of the sentence imposed.” This section therefore brings finality on a judgement entered through plea negotiations. It is thus argued that section 87(a) of the CPC on the other hand provides that at any time before judgement is pronounced a public prosecutor may with the consent of the Court or instructions from the DPP withdraw from prosecution of any person and Article 157 (8) of the Constitution provides that the DPP may not discontinue a prosecution without the permission of the Court. It is argued that section 87(a) of the CPC is therefore a general procedural provision intended to have matters withdrawn due to situations such as lack of evidence, unavailability of witnesses, procedural defect or other legitimate prosecutorial considerations unrelated to negotiated plea and that section 87(a) of the CPC provides that an Accused Person can be re-arrested and charged where a withdrawal is made before the accused has been put to his defence and therefore, the attempt by the DPP to withdraw or terminate the current case under section 87(a) of the CPC before the Accused Persons put on their defence, means that they may be subject of arrest and prosecution over the same facts in the future and contradicts section 137L of the CPC which spells out the finality of judgment entered through plea negotiations and Article 157(8) of the Constitution which requires permission of the Court. It is argued that had the drafters of the CPC intended to accommodate a withdrawal of a criminal case within the confines of sections 137A-O, in the manner provided under section 87(a) of the CPC, they would have made it express. It is argued that the DPP’s submissions - at paragraph 47 - is that if the Court admits the Plea Agreement under section 137F to 137J then the matter is withdrawn under section 87(a) CPC and that section 137F provides for recording of Plea Agreement, section 137G provides for competence to make a Plea Agreement, section 137H provides for recording of factual basis, 137I provides for address by parties and 137J provides for rejection of Plea Agreement. It is contended that the DPP’s submissions that Court’s admission of the plea under the highlighted sections (137F to 137J) warrants a withdrawal of the charges herein under section 87(a) CPC is a misapprehension of the law. It is further argued that the DPP’s submissions in addressing this issue of withdrawal has tactfully framed it to read “whether withdrawal of charge is allowed for under section 137A-O of the CPC” and avoided the aspect of withdrawal of the matter under section 87(a) of the CPC and that this demonstrates that the attempt to withdraw this matter under section 87(a) under the guise of a negotiated Plea Agreement is a well calculated mischief intended suppress any public agitation that may arise on account of withdrawal of corruption and economic crimes charges and that the intention is to make the public believe that the state still reserves a right to institute proceedings against the Accused Persons arising from the same facts. It is thus concluded that the application of section 87(a) of the CPC in a plea negotiation process is a misapplication of the law and that plea negotiations as provided in the CPC, contemplate a conviction on own plea, followed by a judgment and a verdict on sentence. 67.Regarding the question whether the Plea Agreement is in the public interest, it is submitted that corruption and economic crimes are matters of public interest and that corruption deprives citizens of essential services, undermines socio-economic rights and it is directly linked to developmental stagnation and inequality and that it is therefore paramount that corruption cases are treated with caution and the seriousness that they deserve and the various considerations like the seriousness of the offence, the need for deterrence, accountability of offenders, protection of victims and the community and maintaining public confidence in the justice system should come into play in the determination of corruption and economic crimes cases. It is thus urged that the Plea Agreement before Court fails to meet the public interest threshold and that whereas Plea Agreements play an important role in the efficient administration of justice, efficiency cannot override legality, proportionality, accountability, and public confidence in the criminal justice system. 68.Regarding the DPP’s mandate, it is submitted that whereas it is acknowledged that the DPP is constitutionally mandated to prosecute, the said powers are subject to scrutiny, citing the decision in Nairobi High Court ACEC Pet No. E004 of 2024, Fedrick Mulaa v Kenya Human Rights Commission And ODPP and 5 Others, where it was stated thus: “It is true that Article 157 of the Constitution shields the 1st respondent( in this case DPP) from control by any person or authority but that does not mean that it is immune to scrutiny of its processes and actions. The Constitution is supreme and must be adhered to by all the persons, state agencies and public entities. Where an act or omission goes against the word and spirit of the Constitution, the actors cannot claim constitutional independence when they are called upon to account for their said actions or omissions” Further reliance is placed upon Njenga v Inspector General of Police & 3 others; Kimani (Interested Party) (2023) KEHC 487 (KJLR), where the high Court stated that “While constitutional and statutory bodies must be allowed to discharge their mandate unhindered, such discharge must be within the confines of the Constitution and the law” In this respect, it is argued that the DPP’s mandate is to safeguard the law and to keep public bodies, state and public officers within their constitutional and statutory mandates and boundaries and where a public body is apparently in breach or violation of the law and established constitutional principles, this Court has jurisdiction and powers to intervene, citing Republic v Kenya Revenue Authority; Proto Energy Limited (Exparte) (2022) KEHC 5 (KLR), where the Court stated that “…. whether a decision is rationally related to the purpose for which the power was given calls for an objective inquiry. In relation to the exercise of power by the Respondent, the rule of law requires that the exercise of public power should not be arbitrary, and that the decision taken must be rationally related to the purpose for which the power was given. The Respondent must carry out its constitutional obligations in line with the rule of law.” 69.In closing, this Court is urged to find that the DPP has exercised his powers arbitrarily in the impugned Plea Agreement and reject it in totality for non-compliance with sections 137A–137O of the CPC and for failure to meet the public interest threshold. PART VIII: Questions for Determination 70.In my mind, in the context of Plea Agreements gleaning from the provisions of Article 159(2)(c) and 157 of the Constitution and sections 137A-137O of the CPC, the legality acid test applied to interrogate such agreements can be dichotomized into procedural and/or formalities legality test and substantive legality test. Flowing from the DPP’s Motion to adopt the Plea Agreement as a Judgment of this Court, EACC's objection to the said motion, and both the DPP's and the Accused Persons' response to EACC’s Objection and the attendant respective written submissions, there are two broad questions have crystallized for determination and the first broad question has five (5) specific derivative questions as follows:a.Whether the Plea Agreement has surmounted the procedural/formalities legality test. Under this broad question, there are five specific derivative questions as follows:i.Whether EACC has locus standi to challenge legality of the subject Plea Agreement.ii.Who are the proper parties to a Plea Agreement (reposed with the right to execute an enforceable Plea Agreement)? Under this principal question, there is a derivative question whether EACC must sign a Plea Agreement (in order to validate it for purposes of enforcement)?iii.Whether the Plea Agreement does not meet the statutory requirements set out in section 137D,137F & 137H of the CPC and in particular, whether EACC was consulted and whether DPP has an obligation in law to concur with EACC.iv.Whether the Plea Agreement meets the statutory requirements set out in section 137A 1(a), (b) & (2) of the CPC and in particular, whether a proper Plea Agreement must result in admission of criminal liability.v.Whether section 87(a) of the CPC can be invoked when the withdrawal option under section 137A(1)(b) of the CPC is the agreed option in a plea negotiation.b.Whether the Plea Agreement has surmounted the substantive legality test, which is whether there’s a sound legal basis and/or justification for the Plea Agreement, upon which the Plea Agreement dated 28th August 2025 can be adopted a Judgment of this Court, with emphasis on question whether this Plea Agreement has surmounted the triple-conditions test of public interest, interests of administration of justice and the need to avoid abuse of the legal process. PART IX: Analysis and Determination 71.In determining whether to accept or reject the plea agreement, it’s imperative to highlight at the earliest that the CPC envisages a Judgment upon presentation of a Plea Agreement by the DPP. See section 137L of the CPC. 72.The constitutional foundation of plea bargaining is Article 159(2)(c) of the Constitution, which reposes an obligation upon the Court to promote alternative forms of dispute resolution. This constitutional foundation is amplified and operationalized by sections 137A-137O of the CPC. 73.I now embark on determination of the first set of five questions falling the first ambit of procedural/formalities legality test. (a) Whether the Plea Agreement has Surmounted the pRocedural And/or Formalities Legality Test 74.The procedural legality test concerns itself with the process and procedure adopted in entering the Plea Agreement and whether it’s consistent with the law. Under this test, there are five juridical questions for determination as follows: (i) Whether EACC has locus Standi to Challenge Legality of the Subject Plea Agreement 75.The question of locus standi is neither an idle nor merely a procedural question. In its proper context, it’s a substantive question which runs deep into the root of jurisdiction of the Court. It, thus, must be determined at the earliest. 76.The locus standi of EACC to challenge the subject Plea Agreement, was challenged by the DPP. For the DPP, it was a thesis was advanced that upon consultation of EACC by the DPP, EACC lost its locus standi to challenge the outcome of the plea negotiations. The DPP contends that Article 157 of the Constitution of Kenya, vests State powers of prosecution upon the ODPP and that this, para materia, is restated by section 5 of the ODPP Act and that in exercise of this power, it is advanced, the DPP is not subject to direction or control of any person, body or authority as provided for under Article 157(10) of the Constitution. For the proposition that the DPP is vested with power to continue or discontinue criminal proceedings, the COA holding in Roy Richard Elirema & anor v Republic [2003] eKLR was cited, where the COA stated that “We must hold that for a criminal trial to be validly conducted within the provisions of the Constitution and the Code, there must be a Prosecutor…who must play the role of deciding…whether to continue or discontinue the prosecution.” In the same vein, further reliance was placed upon Geoffrey K. Sang v DPP & 4 Others [2020] eKLR, where the Court in paragraph 132 stated that “The DPP is not bound to prosecute simply because the investigating agencies have formed an opinion that a prosecution ought to be undertaken. The ultimate decision of what steps ought to be taken to enforce the criminal law is placed on the officer in charge of prosecution… 133. Although the police may advise on the possible charges while forwarding the file to DPP…such opinion is merely advisory and not binding on the DPP... 134… the final word with regard to the prosecution lies with the DPP… 136. In my view, the discretion to be exercised by the DPP is not to be based on recommendations made by the investigative bodies. Therefore, the mere fact that the DPP’s decision differs from the opinion formed by the investigators is not a reason for interfering with the constitutional and statutory mandate of the DPP…as long as he takes into account the provisions of Article 157(11) of the Constitution as read with section 4 of the Office of Public Prosecutions Act, No. 2 of 2013.” Besides, the SCORK Guidelines in Joseph Lendrix Waswa v Republic [2020] eKLR, were invoked where the Court at paragraph 75 stated that “The DPP must at all times retain control of and supervision over the prosecution of the case... 76.…a victim cannot and does not wear the hat of a secondary prosecutor.” 77.In Director of Public Prosecutions v Gabreil Bukachi Chapia aka Gabriel Bukachi Chapia, Milimani MCAC No. E041 of 2024 (now reported as Director of Public Prosecutions v Chapia & another (Anti-Corruption Case E041 of 2020) [2024] KEMC 46 (KLR) (Anti-Corruption and Economic Crimes) (25 November 2024) (Ruling) [hereinafter “the Chapia decision”], this Court was confronted with a similar locus standi question but in a different context, whether EACC, in its investigative capacity, can independently challenge an application for withdrawal by the DPP under section 87(a) of the CPC and this Court held that EACC lacks locus standi to actively participate in and enjoy the right of audience in criminal proceedings involving corruption and/or economic crimes, in the capacity of either a “victim” of the said offences or a “victim representative” but the right to watching brief by Counsel instructed by EACC is within the right of EACC and protectable by the Court. This Court finds it imperative to underscore that the current context, being a challenge levelled in the context of a Plea Agreement, is different. 78.In the Chapia decision of this Court, proceeding on the legality principle that power, authority, jurisdiction, mandate, role or right vested in a public body is conferred either by the Constitution or statute and that a public body cannot arrogate more than it has been conferred, upon undertaking a deep excavation of the Constitution, CPC, the ODPP Act and the EACC Act, this Court found no provision conferring EACC with locus standi to challenge an application for withdrawal by the DPP under section 87(a) of the CPC. This Court observed that in circumstances where the DPP makes an application to withdraw from prosecution under section 87(a) of the CPC, in the context of Article 157 of the Constitution and section 87(a) of the CPC and section 5 of the ODPP Act and there being no provision of law which confers EACC, in its investigative capacity, with such locus standi, EACC lacks locus standi to oppose such an application or for any other reason, except the limited participation in its watching brief capacity. 79.However, in the context of plea bargaining, the circumstances and factual matrix are distinguishable from the circumstances and factual matrix in the Chapia decision. Section 137D of the CPC reposes a legal obligation upon the DPP to consult an investigative agency in the plea negotiations. It provides that “A prosecutor shall only enter into a Plea Agreement in accordance with section 137A — (a) after consultation with the police officer investigating the case; (b) with due regard to the nature of and the circumstances relating to the offence, the personal circumstances of the Accused Person and the interests of the community; (c) unless the circumstances do not permit, after affording the victim or his legal representative the opportunity to make representations to the prosecutor regarding the contents of the agreement.” 80.This provision therefore confers a right on EACC and firmly founds the locus standi to question the process, if this right was either denied or violated or infringed or threatened and the circumstances obtaining herein thus provide an exception to the general rule. 81.Accordingly, gathering from the holistic construction of the provisions of sections 137A-137O of the CPC and in particular the provisions of section 137D of the CPC, it is discernible that the locus standi of EACC to challenge the Plea Agreement is not based on the fact that it must have been a party to the Plea Agreement, but rather the right to be consulted. Wherefore this Court concludes that EACC has the legal capacity - locus standi - to challenge the legality of the subject Plea Agreement (signed by the DPP and Accused Persons). (ii) Who are the Proper Parties to a Plea Agreement (reposed with the right to execute an enforceable Plea Agreement)? Under this Principal Question, there is a Derivative Question Whether EACC Must Sign a Plea Agreement (in order to Validate it for Purposes of enforcement)? 82.In this case, EACC declined to sign the Plea Agreement. This is the rejection which provoked the three inter-connected questions thus: Who are proper parties to a Plea Agreement? Who must sign a Plea Agreement? If EACC does not sign a Plea Agreement, what is the legal ramification on its validity? 83.A prosecutor on one hand and an Accused Person or a representative of the Accused Person, may negotiate and enter into a plea agreement in respect of either reduction of a charge to a lesser included offence or withdrawal of the charge or a stay of other charges or the promise not to proceed with other possible charges. See section 137A of the CPC which provides that “(1) Subject to section 137B, a prosecutor and an Accused Person or his representative may negotiate and enter into an agreement in respect of — (a) reduction of a charge to a lesser included offence; (b) withdrawal of the charge or a stay of other charges or the promise not to proceed with other possible charges. (2) A Plea Agreement entered into under subsection (1)(a) or (b) may provide for the payment by an Accused Person of any restitution or compensation. (3) A Plea Agreement under subsection (1) shall be entered into only after an Accused Person has been charged, or at anytime before judgement. (4) Where a prosecution is undertaken privately no Plea Agreement shall be concluded without the written consent of the Director of Public Prosecutions.” {Emphasis supplied} 84.The authority to negotiate and enter into a Plea Agreement on behalf of the Republic is reposed upon the DPP or officers authorized by the DPP. See section 137B of the CPC which provides that “137B. Plea Agreement on behalf of the Republic” and the section provides that “A Plea Agreement on behalf of the Republic shall be entered into by the Director of Public Prosecutions or officers authorized by the Director of Public Prosecutions in accordance with article 157(9) of the Constitution and any other person authorized by any written law to prosecute: Provided that in any trial before a subordinate Court, a public prosecutor may with the prior written approval of the Director of Public Prosecutions or officers subordinate to him, as the case may be, enter into a Plea Agreement in accordance with section 137A(1).” {Emphasis supplied} 85.The legal formalities of a Plea Agreement as follows: (i) it shall be in writing; (ii) it just have been reviewed and accepted by the Accused Person, or explained to the Accused Person in a language that he understands; (iii) if the Accused Person has negotiated with the prosecutor through an interpreter, contain a certificate by the interpreter to the effect that the interpreter is proficient in that language and that he interpreted accurately during the negotiations and in respect of the contents of the agreement; (iv) it must state fully the terms of the agreement, the substantial facts of the matter and all other relevant facts of the case and any admissions made by the Accused Person; (v) it must be signed by the prosecutor and the Accused Person or the legal representative of the Accused Person; and (vi) in the event a compensation order contemplated in section 175(2)(b) has been included in the agreement, it must be signed by the complainant. See section 137E of the CPC. 86.Provisions of the Criminal Procedure (Plea Bargaining) Rules, 2018, are para materia consistent with the above substantive provisions.a.For instance, rule 2 thereof provides that “A Plea Agreement may be entered into between the prosecutor and an Accused Person where — (a) an Accused Person has been charged in Court; and (b) at any time before the Court passes judgment.” {Emphasis supplied}b.Rule 5 thereof provides that “A prosecutor shall obtain written approval from the Director of Public Prosecutions or from a person authorised in writing by the Director of Public Prosecutions in this regard before entering into a Plea Agreement with an Accused Person.”c.And rule 6 thereof provides that “Plea negotiations may be initiated by a prosecutor or the Accused Person or the Accused Person's representative.”d.And the marginal note of rule 14 reads: “Finalization of agreement” and the rule provides that “(1) A Plea Agreement shall be finalised when the prosecutor and the Accused Person sign the agreement. (2) Where applicable, the legal representative shall also sign the Plea Agreement. (3) Where the Plea Agreement includes a compensation clause, the complainant shall sign the compensation clause of the agreement.” {Emphasis supplied} 87.At the general plane, the law which governs agreements is scattered in the Law of Contract Act, common law and the doctrines of equity. Narrowing down to Plea Agreements, in addition to the general principles aforesaid, the CPC makes provision on how they are entered, as already highlighted above. 88.The golden interpretation of the doctrine of privity to the contract which posits that only parties to the contract can be bound and draw rights therefrom including the right to enforce, written agreements are signed by parties to the agreement. Additionally, where the law so makes it mandatory to validate the agreement for purposes of enforcement, agreements must also be signed by persons who witnessed the parties sign the agreement otherwise known as attesting witnesses. The law requires mandatory attestation in contracts for the disposition of an interest in land. See section 3(3) of the Law of Contract Act. Otherwise, in all other cases, a signature by the parties is enough to validate the agreement for purposes of enforcement. 89.Emerging from the plain reading of the provisions of the CPC and the rules thereunder - which provisions do not call for invocation of the golden or mischief rule of interpretation - it is beyond paradventure that the proper parties to a Plea Agreement, who are then reposed with the right to sign an enforceable Plea Agreement can be dichotomized into:a.Bipartite agreement where the law requires execution of the agreement by the DPP on one hand and the Accused Person or the legal representative of the Accused Person on the second hand, in instances where the compensation order which is contemplated in section 175(2)(b) has not been included in the Plea Agreement; orb.Tripartite agreement where the law requires execution of the agreement by the DPP on one hand, the Accused Person or the legal representative of the Accused Person on the second hand, and the complainant on the third hand, in instances where the compensation order which is contemplated in section 175(2)(b) has been included in the Plea Agreement. 90.Being a Plea Agreement, there is no requirement of attestation in law and EACC is not designated by law as such. 91.Both the power flexed by the State and the rights and/or freedoms enjoyed by the people, are kept in check by the principle of legality - otherwise known as the principle of limited government - a core tenet of civil liberties and the rule of law. This principle postulates that whereas the State can only flex power to the extent expressly authorised by law, an individual enjoys rights and freedoms to do anything save that which is expressly proscribed by law. Without power or authority or function, conferred by the Constitution or statute, a public officer1 and/or public office or state office2 should not to move an inch, granted that venturing in that trajectory sum to naught on account of the doctrine of ultra vires. This powerful edict is anchored on a well-founded morbid fear that power - except when constrained - is intrinsically perversive and a public officer and/or a public office may fall into the temptation of becoming what Lord Mersey once described in his riveting analogy - which I conceive to be deployable in the sui generis context of this PO - as “an unruly dog which, if not securely chained to its own kennel, is prone to wander into places where it ought not to be.”31See Article 260 of the Constitution which defines a“public officer” to mean: “(a) any State officer; or (b) any person, other that a State Officer, who holds a public office.”2See Article 260 of the Constitution which defines a “public office” to mean: “an office in the national government, a county government or the public service, if the remuneration and benefits of the office are payable directly from the Consolidated Fund or directly out of money provided by Parliament.”3See the English House of Lords cause celebre decision in G & C Kreglinger vs. New Patagonia Meat & Cold Storage Co. Ltd [1913] UKHL 1; [1914] AC 25. It should be noted, however, that the powerful statement was made in the context of an unconscionable clog on the equity of redemption, which should inevitably suffer the consequence of being held void. 92.Ex debito justitiae, the only right EACC reserves is the right to be consulted before and during negotiations leading to the Plea Agreement. This will constitute a separate question discussed below. 93.It follows that the parties who must sing the Plea Agreement to validate if for purposes of Enforcement are either the DPP and the Accused Person or the legal representative of the Accused Person in instances where the compensation order which is contemplated in section 175(2)(b) has not been included in the Plea Agreement; or the DPP, the Accused Person or the legal representative of the Accused Person and the complainant, in instances where the compensation order which is contemplated in section 175(2)(b) has been included in the Plea Agreement. 94.However, it will be remiss if this Court if it fails to underscore that there’s law and there’s good practice which does not offend the law. In this regard, there will be no harm if a Plea Agreement is signed or attested by EACC. This usually carries the significance of goodwill. 95.In conclusion, first, emerging from 137A, 137B, 137D, and 137E of the CPC; and rules 2, 5, 6 and 14 of the Criminal Procedure (Plea Bargaining) Rules, 2018, in bipartite agreements, there are two primary and mandatory parties to a valid Plea Agreement namely the DPP on one hand, and the Accused Person or the legal representative thereof, on the other. In such cases, the proper parties to the Plea Agreement (reposed with the right to execute an enforceable Plea Agreement) is the DPP and the Accused Person. Second, emerging from 137A, 137B, 137D, and 137E of the CPC; and rules 2, 5, 6 and 14 of the Criminal Procedure (Plea Bargaining) Rules, 2018, in tripartite agreements, there are three primary and mandatory parties to a valid Plea Agreement namely the DPP on one hand, the Accused Person or the legal representative thereof, on the second hand, and the complainant on the third hand, in instances where the compensation order which is contemplated in section 175(2)(b) has been included in the Plea Agreement. In such cases, the proper parties to the Plea Agreement (reposed with the right to execute an enforceable Plea Agreement) are the DPP, the Accused Person, and the complainant. Third, gathering from the said provisions, it can be discerned that whereas execution of a Plea Agreement by an investigator is not a mandatory requirement, consultation with the investigator during the negotiations leading to the Plea Agreement is a mandatory requirement of the law. The irreducible minimum. Fourth and finally, although not obligatory, execution of the agreement by the investigator is certainly an advisable best practice fundamentally because it is indicative of unity of purpose with the DPP apart from importing concurrence. In the mind of this Court, this gold standard practice should especially be applied to fill the void of attestation (of the fact that the parties signed the agreement). However, since the law does not lend it that character, this practice is not and cannot be mandatory. (iii) Whether the Plea Agreement does not meet the statutory requirements set out in section 137D,137F & 137H of the CPC and in particular, whether EACC was consulted and whether DPP has an obligation in law to concur with EACC 96.Regarding consultation, EACC denied that it was consulted. For this reason, EACC advances that the subject Plea Agreement does not meet the statutory requirements set out in section 137D,137F & 137H of the CPC. EACC urges that consultation means that the views of EACC must be reflect in the final Plea Agreement. It is argued that EACC’s role in the negotiation table is to bring the nature and circumstances relating to the offence, the personal circumstances of the Accused Person and the interests of the community and that after this crucial information has been provided by the Investigating Officer, it should be included in the Plea Agreement which is eventually presented by the prosecution under section 137F of the CPC before the Court as the factual basis of a Plea Agreement to the Court’s satisfaction and that it is the said factual basis that the Court relies on in accepting the Plea Agreement as provided for under section 137H of the CPC and in the absence of the factual basis, a Court cannot accept a Plea Agreement as envisaged by section 137H 1(a) of the CPC. In this regard, it is argued that although the DPP submits that EACC was consulted and that EACC was invited for all meetings and that minutes of the meetings are filed in Court, there is no evidence availed of the purported participation by EACC and there are no minutes attached as alleged in the DPP’s submissions and that what was attached are attendance registers, which cannot be deemed to be consultation and participation as envisaged under section 137D of the CPC. It is argued that consultation with the investigating officer is and should not be just mere attendance as alluded to by the DPP. 97.What then amounts to consultation? What is the purpose of consultation? And what threshold can possibly surmount the test of consultation? The principal purpose of consultation is a communication of a genuine invitation with a receptive mind, to give advice. See Agricultural, Horticultural and Forest Industry Training Board v Aylesbury Mushrooms Ltd [1972] 1 All ER 280 at 284 where the Court explained the essence in the following words: “The essence of consultation is the communication of a genuine invitation, extended with a receptive mind, to give advice. If the invitation is once received, it matters not that it is not accepted and no advice is proffered. Were it otherwise organizations with a right to be consulted could, in effect, veto the making of any order by simply failing to respond to the invitation. But without communication and the consequent opportunity of responding there can be no consultation.” 98.The fact that EACC participated in the plea negotiation meetings is not denied. What is denied, upon which the Plea Agreement is faulted is that it was denied the chance to bring to the negotiation table the nature and circumstances relating to the offence, the personal circumstances of the Accused Person and the interests of the community. It is asserted by EACC that the views of EACC must be reflect in the final Plea Agreement. It is on this basis that EACC faults the Plea Agreement. 99.This Court did conclude herein above that section 137D of the CPC reposes a legal obligation upon the DPP to consult EACC in the plea negotiations. However, there is neither a prescribed statutory form of consultation nor is there a hard and fast rule on the shape consultations must take. 100.In order to reach a conclusion that there was no consultation, this Court has to be persuaded that the principal purpose of consultation was absent in the following ways: (i) that there was no communication of a genuine invitation to give advice; (ii) that there was no opportunity to present the advice; and (iii) that there was no receptive mind. 101.Using the material placed before this Court, including correspondence exchanged, representations through submissions of the players in this process and uncontroverted fact that EACC participated in the plea negotiation meetings, this Court was unpersuaded (i) that there was no communication of a genuine invitation to give advice; (ii) that there was no opportunity to present the advice; and (iii) that there was no receptive mind. This Court is thus unable to find that EACC was denied the chance to bring to the negotiation table the nature and circumstances relating to the offence, the personal circumstances of the Accused Person and the interests of the community, merely because the particular views (which were not disclosed this Court) may not have been reflected in the final Plea Agreement. Having embraced the negotiations leading to the Plea Agreement and having participated fully, it seems to me that EACC's main point of departure is driven more by the terms of the Plea Agreement than legality thereof. This Court further observes that the position that it was not consulted, without doubt, was sparked by lack of concurrence by EACC to the option of withdrawal selected from section 137A of the CPC. 102.This leads me to the next question whether, in order to attain the threshold of consultation contemplated by section 137D of the CPC and Article 259(11) of the Constitution, the DPP has an obligation in law to Concur with EACC’s views. 103.The starting point is the power of the DPP in respect to plea negotiations. As concluded above, the power to negotiate a Plea Agreement on behalf of the Republic of Kenya is vested in the DPP. In the exercise of this power, the DPP 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. See Article 157(10) of the Constitution. However, the DPP is subject to the Constitution. In particular, in exercising the powers conferred by Article 157 of the Constitution, the DPP 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. See Article 157(11) of the Constitution. 104.The DPP’s power is further subject to Article 259(11) of the Constitution which provides that “If a function or power conferred on a person under this Constitution is exercisable by the person only on the advice or recommendation, with the approval or consent of, or on consultation with, another person, the function may be performed or the power exercised only on that advice, recommendation, with the approval or consent, or after that consultation, except to the extent that this Constitution provides otherwise.” {Emphasis supplied} 105.Proceeding on this footing, consultation is not only a constitutional edict but also a statutory imperative. From the representations made by counsel for EACC, my discernment is that the representations raise a fundamental preliminary question whose epicentre is section 137D of the CPC which stipulates that “A prosecutor shall only enter into a Plea Agreement in accordance with section 137A — (a) after consultation with the police officer investigating the case; (b) with due regard to the nature of and the circumstances relating to the offence, the personal circumstances of the Accused Person and the interests of the community; (c) unless the circumstances do not permit, after affording the victim or his legal representative the opportunity to make representations to the prosecutor regarding the contents of the agreement.” {Emphasis supplied} 106.It is now an established principle that consultation does not mean concurrence or consensus. However, this does mean that consultation need not be meaningful. It follows that the views expressed by the party consulted during consultations must be made with solid reasons. See SDV Transami Kenya Limited & 19 others v Attorney General & 2 others; Container Freight Association of Kenya (Interested Party) (Constitutional Petition 76 of 2012) [2016] KEHC 571 (KLR) (21 November 2016) (Judgment), where at paragraph 103, the Court held that “Consultation need not result in views of the person consulted carrying the day.” See also Centre for Rights Education and Awareness (CREAW) & 7 others v Attorney General [2011] KEHC 4297 (KLR); Solomon Chemjor & 7 others v Commission for University Education & 3 others [2017] KEHC 5845 (KLR), et alia. 107.In any event, having reached a conclusion that EACC was consulted, it was obligatory upon EACC but it failed to lay before this Court the particular factors which it tabled on the table of negotiations but unfactored in the Plea Agreement. In the circumstances, the objection by EACC remained merely a protest that it was not consulted without specific material or substance underlining the objection, for consideration by this Court in this determination. 108.Reasons wherefore this Court concludes that EACC was consulted by the DPP and that upon discharging its obligation to consult EACC - provided there are sound and justifiable reasons consistent with Article 157(11) of the Constitution not to factor the views expressed by EACC if any (and this will be discussed herein below under question [b]) as not to render the consultations not meaningful - the DPP has no obligation in law to concur with the views expressed by EACC. (iv) Whether the Plea Agreement meets the statutory requirements set out in section 137A 1(a), (b) & (2) of the CPC and in particular, whether a proper Plea Agreement must result in admission of criminal liability 109.In its thesis, EACC advances that a proper Plea Agreement must result in admission of criminal liability. In this context, EACC impugns this Plea Agreement on basis of the position held by EACC that it does not meet the statutory requirements set out in section 137A 1(a), (b) & (2) of the CPC which contemplates admission of criminal liability. It is contended by EACC that section 137A(2) of the CPC provides that a Plea Agreement entered into under subsection (1)(a) or (b) may provide for the payment by an Accused Person of any restitution or compensation and this provision clearly shows that any form of restitution should be within the confines of the criminal proceedings. EACC submits that the impugned Plea Agreement is unlawfully founded on restitution which has been elevated to be the primary basis of the negotiated outcome and this Court is invited to look into paragraph 12, (a) to (f) of the Plea Agreement and note that the same makes reference to Settlement Agreement entered into in two civil suits namely ACEC Civil Suit No. 32 of 2018 and ACEC civil suit No. E010 of 2021, as the only issue parties agreed upon and in this regard, it is argued that restitution in a civil case cannot substitute the requirement for a factual admission of criminal liability and the same can however be considered by the Court during sentencing as a mitigating factor as provided for under section 137I (2)(d). It is argued that the Plea Agreement before Court treats restitution as though it cures the absence of a factual admission of guilt, which is a misapprehension of the law and that anchoring a Plea Agreement on restitution alone undermines the objectives of plea bargaining, particularly, accountability, transparency, and public interest - especially in Anti-Corruption matters. 110.On the other hand, the Accused Persons argue that the DPP, invoked powers of the DPP enshrined in Article 157 of the Constitution as read together with the provisions of section 87 (a) of the CPC in electing to discontinue the criminal proceedings against the Accused Persons. It is argued that one of the avenues permitted by section 137A of the CPC is withdrawal of the charges. It is argued that a textual interpretation of the aforesaid provision reveals that contrary to the assertions by the EACC, the DPP is empowered to withdraw criminal charges even under plea negotiations and furthermore, the said provision does not expressly prescribe the manner the DPP elects to withdraw the charges and as such, the DPP has the discretion in deciding whether to discontinue the criminal proceedings subject to subsequent prosecution or not. It is argued that the position held by EACC that plea negotiations only contemplate a conviction on own plea followed by a judgment and a verdict on sentence, is without merit and a misapprehension of the law ex facie, reasoning that section 137A(1) (a) & (b) of the CPC presents alternatives that the DPP may employ during plea negotiations one of them being, withdrawal of charges. It is argued that EACC has deliberately overlooked this provision and foresees plea negotiations to only be in respect to reduction of charges to lesser included offences. 111.Section 137A of the CPC provides as follows: “(1) Subject to section 137B, a prosecutor and an Accused Person or his representative may negotiate and enter into an agreement in respect of — (a) reduction of a charge to a lesser included offence; (b) withdrawal of the charge or a stay of other charges or the promise not to proceed with other possible charges. (2) A Plea Agreement entered into under subsection (1)(a) or (b) may provide for the payment by an Accused Person of any restitution or compensation. (3) A Plea Agreement under subsection (1) shall be entered into only after an Accused Person has been charged, or at anytime before judgement. (4) Where a prosecution is undertaken privately no Plea Agreement shall be concluded without the written consent of the Director of Public Prosecutions.” {Emphasis supplied} 112.Gleaning from the plain reading of this provision which calls for a disjunctive construction – and which does not call for the golden or mischief canons of interpretation of statutes - except offences defined by the Sexual Offences Act, genocide, war crimes and crimes against humanity, the law reposes discretionary power upon DPP to negotiate and enter into a Plea Agreement with an Accused Person in respect of: (i) reduction of a charge to a lesser included offence; or (ii) withdrawal of the charge; or (iii) a stay of other charges or the promise not to proceed with other possible charges, provided the agreement surmounts certain established constitutional, statutory and decisional law principles, tests and thresholds which will be discussed under question [b] herein below. 113.I thus find the thesis advanced by EACC that a proper Plea Agreement must result in admission of criminal liability, unfortified by law. If it were so, nothing would have been easier for parliament than to say so. Certainly, there are circumstances, consistent with Article 157(11), which necessarily befit the option of withdrawal under section 137A(1)(b) of the CPC. (v) Whether section 87(a) of the CPC can be invoked when the withdrawal option under section 137A(1)(b) of the CPC is the agreed option in a plea negotiation 114.In this regard, EACC contends that plea negotiations are provided for under section 137A-O of the CPC and that the impugned Plea Agreement - at paragraph 12(g) - provides that the “prosecution wishes to withdraw all the charges under section 87A of the CPC.” It is argued that section 137L of the CPC provides for finality of judgement passed under section 137A-O of the CPC and provides that “no appeal shall lie therefrom except as to the extent of legality of the sentence imposed.” For EACC, it is argued that section 87(a) of the CPC on the other hand provides that at any time before judgement is pronounced, a public prosecutor may with the consent of the Court or instructions from the DPP withdraw from prosecution of any person and Article 157 (8) of the Constitution provides that the DPP may not discontinue a prosecution without the permission of the Court. It is argued that section 87(a) of the CPC is therefore a general procedural provision intended to have matters withdrawn due to situations such as lack of evidence, unavailability of witnesses, procedural defect or other legitimate prosecutorial considerations unrelated to negotiated plea and that section 87(a) of the CPC provides that an Accused Person can be re-arrested and charged where a withdrawal is made before the accused has been put to his defence and therefore, the attempt by the DPP to withdraw or terminate the current case under section 87(a) of the CPC before the Accused Persons put on their defence, means that they may be subject of arrest and prosecution over the same facts in the future and contradicts section 137L of the CPC which spells out the finality of judgment entered through plea negotiations and Article 157(8) of the Constitution which requires permission of the Court. It is argued that had the drafters of the CPC intended to accommodate a withdrawal of a criminal case within the confines of sections 137A-O, in the manner provided under section 87(a) of the CPC, they would have made it express. It is argued that the DPP’s submissions - at paragraph 47 - is that if the Court admits the Plea Agreement under section 137F to 137J then the matter is withdrawn under section 87(a) CPC and that section 137F provides for recording of Plea Agreement, section 137G provides for competence to make a Plea Agreement, section 137H provides for recording of factual basis, 137I provides for address by parties and 137J provides for rejection of Plea Agreement. It is contended that the DPP’s submissions that Court’s admission of the plea under the highlighted sections (137F to 137J) warrants a withdrawal of the charges herein under section 87(a) CPC is a misapprehension of the law. It is further argued that the DPP’s submissions in addressing this issue of withdrawal has tactfully framed it to read “whether withdrawal of charge is allowed for under section 137A-O of the CPC” and avoided the aspect of withdrawal of the matter under section 87(a) of the CPC and that this demonstrates that the attempt to withdraw this matter under section 87(a) under the guise of a negotiated Plea Agreement is a well calculated mischief intended suppress any public agitation that may arise on account of withdrawal of corruption and economic crimes charges and that the intention is to make the public believe that the state still reserves a right to institute proceedings against the Accused Persons arising from the same facts. It is thus concluded that the application of section 87(a) of the CPC in a plea negotiation process is a misapplication of the law and that plea negotiations as provided in the CPC, contemplate a conviction on own plea, followed by a judgment and a verdict on sentence. 115.On the other hand, the Accused Persons reason that in this regard, the DPP has subject to plea negotiations involving the Accused Persons, EACC and the DPP, invoked powers of the DPP enshrined in Article 157 of the Constitution as read together with the provisions of section 87 (a) of the CPC in electing to discontinue the criminal proceedings against the Accused Persons. It is argued that contrary to the submissions by EACC, no provision in law bars the withdrawal of criminal charges under section 87 of the CPC in plea negotiations and that in fact, section 137A of the CPC is clear that subject to section 137B, a prosecutor and an Accused Person or his representative may negotiate and enter into an agreement in respect of — (a) reduction of a charge to a lesser included offence; (b) withdrawal of the charge or a stay of other charges or the promise not to proceed with other possible charges. It is argued that a textual interpretation of the aforesaid provision reveals that contrary to the assertions by the EACC, the DPP is empowered to withdraw criminal charges even under plea negotiations and furthermore, the said provision does not expressly prescribe the manner the DPP elects to withdraw the charges and as such, the DPP has the discretion in deciding whether to discontinue the criminal proceedings subject to subsequent prosecution or not. It is further argued that in the circumstances, the DPP is well within his mandate in electing to withdraw the charges against the Accused Persons in accordance with section 87(a) of the CPC and EACC’s contention that withdrawing the criminal charges against the Accused Persons contradicts section 137L of the CPC which provides for finality of Judgment entered through plea negotiations and that plea negotiations only contemplate a conviction on own plea followed by a judgment and a verdict on sentence, is without merit. It is argued that EACC’s contention is a misapprehension of the law ex facie, reasoning that section 137A(1) (a) & (b) of the CPC presents alternatives that the DPP may employ during plea negotiations one of them being, withdrawal of charges. It is argued that EACC has deliberately overlooked this provision and foresees plea negotiations to only be in respect to reduction of charges to lesser included offences. In further connection to this, it is argued that the finality of the judgment as per section 137L of the CPC not only applies to instances where a conviction on own plea has been passed, but also where there is has been a withdrawal of charges under section 137A(1)(b) of the CPC, implying that unless there was any form of fraud or misrepresentation, one cannot appeal the decision by the DPP to withdraw the charges. It is further argued that the contention by the EACC - in paragraph 25 of their submissions - is self-contradictory, where it argues that section 87 (a) of the CPC is not applicable in plea negotiations since, if permitted by the Court, it effectively terminates criminal proceedings and that plea negotiations only have one outcome - conviction on own plea. In this respect, learned counsel argues that the assertion by the EACC is misleading and that in fact, the inverse is true since a reading of section 87 (a) of the CPC reveals that withdrawal of charges against an Accused Person shall not operate as a bar to subsequent proceedings against him on account of the same facts and as such, the EACC is misleading the Court by implying that the DPP sole intention is to terminate the trial. 116.Regarding the question whether a withdrawal from prosecuting the Accused Persons under section 87(a) of the CPC is improper in the context of a Plea Agreement, this Court must of necessity take a deep plunge into not only the length and breadth of withdrawals envisaged by the law, but also the typologies of discontinuation of criminal proceedings by way of withdrawal. 117.There are at least four typologies of discontinuation of criminal proceedings by way of withdrawal envisaged by law. 118.The first typology of withdrawals envisaged by the law is a withdrawal upon the motion of the DPP under section 87(a) of the CPC which provides that “In a trial before a subordinate Court a public prosecutor may, with the consent of the Court or on the instructions of the Director of Public Prosecutions**, at any time before judgment is pronounced, withdraw from the prosecution of any person, and upon withdrawal — (a) if it is made before the Accused Person is called upon to make his defence, he 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.” This pathway is exclusively curved for the DPP. If the motion is moved and granted under this section, then the net legal effect of the withdrawal is a discharge. Since the discharge shall not operate as a bar to subsequent proceedings against the person discharge on account of the same facts and since the person discharged under this provision may be re-arrested and charged afresh on account of the same facts, this typology does not import finality into the process. 119.The second typology of withdrawals envisaged by the law is a withdrawal upon the motion of the DPP under section 87(b) of the CPC which provides that “In a trial before a subordinate Court a public prosecutor may, with the consent of the Court or on the instructions of the Director of Public Prosecutions**, at any time before judgment is pronounced, withdraw from the prosecution of any person, and upon withdrawal — … (b) if it is made after the Accused Person is called upon to make his defence, he shall be acquitted.” This pathway too is exclusively curved for the DPP. In this case, once the motion is moved and granted, then the net legal effect of the withdrawal is an acquittal and this operates as a bar to subsequent proceedings against the person acquitted on account of the same facts. This typology thus imports finality into the process. 120.The third typology of withdrawals envisaged by the law is a withdrawal upon the motion of the complainant under the provisions of section 204 of the CPC which provides that “If a complainant, at any time before a final order is passed in a case under this Part, satisfies the Court that there are sufficient grounds for permitting him to withdraw his complaint, the Court may permit him to withdraw it and shall thereupon acquit the accused.” This pathway is exclusively curved for the complainant. Unlike the dichotomy exhibited by section 87(a) of the CPC on one hand and section 87(b) of the CPC on the other hand, if the motion of the complainant is moved and granted, notwithstanding the fact that it was moved and granted either before or after the accused was put on his defence, the net legal effect of the withdrawal under section 204 of the CPC is an acquittal. 121.The fourth typology, under section 137A(1)(b) of the CPC, is the epicentre of this Plea Agreement. I will delve more into this typology. 122.In my view, this withdrawal is sui generis. Although section 137A(1)(b) of the CPC provides that a Plea Agreement result into “withdrawal of the charge”, unlike section 87 and 104 of the CPC which expressly provide the fate of the withdrawal to either a discharge or an acquittal, section 137A(1)(b) does not provide for the fate of the accused when in the Plea Agreement, the option of withdrawal is the selected by agreement. Further, an examination of the provisions spanning 137A-137O of the CPC, they make no express provision of the fate of the Accused Person upon withdrawal contemplated by section 137A(1)(b) of the CPC. The marginal note of section 137L of the CPC reads: “Finality of judgement” and the section provides that “(1) Subject to subsection (2), the sentence passed by a Court under this Part shall be final and no appeal shall lie therefrom except as to the extent or legality of the sentence imposed. (2) Notwithstanding subsection (1), the Director of Public Prosecutions, in the public interest and the orderly administration of justice, or the Accused Person, may apply to the Court which passed the sentence to have the conviction and sentence procured pursuant to a Plea Agreement set aside on the grounds of fraud or misrepresentation. (3) Where a conviction or sentence has been set aside, under subsection (2), the provisions of section 137J shall apply mutatis mutandis.” In the context of this finality provision, it is contended by EACC that the fate in section 87(a) of the CPC is inconsistent with this finality. 123.Section 137L of the CPC contemplates a judgment. A judgment generally - in the context of the doctrine of finality which in turn ingrains the legal consequence of the alternate constitutional criminal law defence of autrefois acquit or autrefois convict under Article 50(2)(o) of the Constitution and which further underpins the doctrine of functus officio - is a Court decision that has become immutable and binding, marking a conclusive closure of litigation on a specific dispute. Quite unlike a Ruling, a judgment speaks to the issues in the dispute with finality. EACC urged this Court to find that section 137L of the CPC is applicable to this question. Although this Court finds that section 137L of the CPC speaks to the finality of a sentence meted out pursuant to a Plea Agreement and consequently inapplicable to this question of withdrawal under section 137A(1)(b) of the CPC. Taking into account that section 137L envisages a judgment, and in the context of the doctrine of finality of judgment, then it would be judicious to conclude that the withdrawal under section 137A(1)(b) of the CPC comes with the finality expected of a judgment. It follows that in the context of the overarching doctrine of finality of judgment, taking the pathway of section 87(a) of the CPC – as set out under paragraph 12(g) of the Plea Agreement which provides that the “prosecution wishes to withdraw all the charges under section 87A of the CPC” - will certainly be incompatible with the doctrine of finality of a judgment and resultantly import an absurdity into the judgment. 124.It is for this reason - and not the ground assigned by EACC that it is inconsistent with the finality in section 137L of the CPC - that this Court concurs with the conclusion reached by EACC that if the matter is withdrawn under section 87(a) of the CPC, it will be inconsistent with the doctrine of finality of judgment. Consequently, the plea negotiations having been progressed pursuant to section 137A(1)(b) of the CPC and the option of withdrawal selected from the options enacted under the self-same section 137A(1)(b) of the CPC, this Court reaches a conclusion invoking section 87(a) of the CPC was and remains inappropriate in the circumstances of plea bargaining. This Court further underscores that section 87(a) of the CPC generally applies in all circumstances reasonably contemplated thereunder and the list cannot be closed (including but not limited to the situations listed by EACC such as lack of evidence, unavailability of witnesses, procedural defect or other legitimate prosecutorial considerations unrelated to negotiated plea), except a withdrawal resulting from plea bargaining. 125.However, having arisen from plea negotiations progressed under the provisions of sections 137A-137O, and the Plea Agreement having registered withdrawal as the agreed option, and this Court having addressed itself to the constitutional principle of substance over undue regard to technicalities now enshrined in Article 159(2)(d) of the Constitution - which commands that procedural infractions should not be elevated over substantive justice - and considering further the doctrine of text and context since the impugned withdrawal was agreed in plea negotiations pursued under section 137A(1)(b) of the CPC and considering further the legal principle that whenever an agreement is under contest, the role of the Court in interpreting agreement in such a manner that gives effect to the clear intention of parties, and granted the fact that the intention of the parties to the Plea Agreement is in no uncertain terms and as unmistakable as sunlight that they agreed on a withdrawal, this Court reaches a conclusion that it is incontestable that the intention of the parties to this Plea Agreement was a withdrawal under section 137A(1)(b) of the CPC and not under section 87(a) of the CPC and this Court so holds. 126.I now turn to determine the substantive legality test of a Plea Agreement. (b) Whether the Plea Agreement has surmounted the substantive legality test, which is whether there’s a sound legal basis and/or justification for the Plea Agreement, upon which the Plea Agreement dated 28th August 2025 can be adopted a Judgment of this Court, with emphasis on question whether this Plea Agreement has surmounted the triple-conditions test of public interest, interests of administration of justice and the need to avoid abuse of the legal process 127.The substantive legality test concerns itself with the question whether there are valid reasons which underpinned the exercise of discretionary power of the DPP in the direction of withdrawal as the appropriate option under section 137A(1)(b) of the CPC, viewed through the lens of the triple-conditions constitutional test housed in Article 157(11) of the Constitution. 128.Article 157 of the Constitution provides that “(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) 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.” {Emphasis supplied} 129.Section 137A of the CPC provides that “(1) Subject to section 137B, a prosecutor and an Accused Person or his representative may negotiate and enter into an agreement in respect of — (a) reduction of a charge to a lesser included offence; (b) withdrawal of the charge or a stay of other charges or the promise not to proceed with other possible charges. (2) A Plea Agreement entered into under subsection (1)(a) or (b) may provide for the payment by an Accused Person of any restitution or compensation. (3) A Plea Agreement under subsection (1) shall be entered into only after an Accused Person has been charged, or at anytime before judgement. (4) Where a prosecution is undertaken privately no Plea Agreement shall be concluded without the written consent of the Director of Public Prosecutions.” {Emphasis supplied} 130.And section 137B of the CPC provides that “A Plea Agreement on behalf of the Republic shall be entered into by the Director of Public Prosecutions or officers authorized by the Director of Public Prosecutions in accordance with article 157(9) of the Constitution and any other person authorized by any written law to prosecute: Provided that in any trial before a subordinate Court, a public prosecutor may with the prior written approval of the Director of Public Prosecutions or officers subordinate to him, as the case may be, enter into a Plea Agreement in accordance with section 137A(1).” {Emphasis supplied} 131.Further, section 137E provides that “A Plea Agreement shall be in writing, and shall — (a) be reviewed and accepted by the Accused Person, or explained to the Accused Person in a language that he understands; (b) if the Accused Person has negotiated with the prosecutor through an interpreter, contain a certificate by the interpreter to the effect that the interpreter is proficient in that language and that he interpreted accurately during the negotiations and in respect of the contents of the agreement; (c) state fully the terms of the agreement, the substantial facts of the matter and all other relevant facts of the case and any admissions made by the Accused Person; (d) be signed by the prosecutor and the Accused Person or his legal representative; (e) be signed by the complainant if a compensation order contemplated in section 175(2)(b) has been included in the agreement.” {Emphasis supplied} 132.Provisions of the Criminal Procedure (Plea Bargaining) Rules, 2018, have not departed from the above substantive provisions. For instance, rule 2 thereof provides that “A Plea Agreement may be entered into between the prosecutor and an Accused Person where — (a) an Accused Person has been charged in Court; and (b) at any time before the Court passes judgment.” {Emphasis supplied}. Rule 5 thereof provides that “A prosecutor shall obtain written approval from the Director of Public Prosecutions or from a person authorised in writing by the Director of Public Prosecutions in this regard before entering into a Plea Agreement with an Accused Person.” And rule 6 thereof provides that “Plea negotiations may be initiated by a prosecutor or the Accused Person or the Accused Person's representative.” And the marginal note of rule 14 reads: “Finalization of agreement” and the rule provides that “(1) A Plea Agreement shall be finalised when the prosecutor and the Accused Person sign the agreement. (2) Where applicable, the legal representative shall also sign the Plea Agreement. (3) Where the Plea Agreement includes a compensation clause, the complainant shall sign the compensation clause of the agreement.” 133.The Article 157(6)(c) powers are reiterated by section 5(1)(iii) of the ODPP Act. 134.First things first. In such agreements signed by a learned Prosecution Counsel on behalf of the DPP, the presumption ingrained in the maxim omnia praesumuntur rite et solemniter esse acta – better known as the presumption of regularity - applies. This maxim posits that whenever a formal act or step is taken by a public officer, the Court is entitled to a rebuttable presumption, until the contrary is proved, that the said act or step, complied with all the necessary formalities and that the person who acted was duly appointed to so do.4 In this regard, this Court presumes that the Plea Agreement was entered after all fomalities were complied with and that the learned prosecution counsel who signed the agreement did so with authority of the DPP. This maxim is ingrained in Article 157(9) of the Constitution and sections 83, 86 and 88 of the CPC. See George Taitumu vs. Chief Magistrates Court, Kibera, Attorney General & Director of Public Prosecutions [2014] KEHC 6173 (KLR) (hereinafter “the Taitumu case”).4See R vs. Gordon (1789) 1 Leach 515, (1789) 1 East PC 315, the earliest decision which enunciated this maxim in common law. The maxim was adopted and applied in R vs. Jones (1806) 31 St Tr 251, (1806) 2 Camp 131; R vs. Verelst (1813) 3 Camp 432; R vs. Catesby (1824) 2 B & C 814, (1824) 4 Dow & Ry KB 434, (1824) 2 Dow & Ry MC 278; R vs. Rees (1834) 6 C & P 606; R vs. Murphy (1837) 8 C & P 297; R vs. Townsend (1841) C & Mar 178; R vs. Newton (1843) 1 C & K 469; R vs. Manwaring (1856) 26 LJMC 10, (1856) Dears & B 132, (1856) 7 Cox 192; R vs. Cresswell (1876) 1 QBD 446, (1876) 33 LT 760, (1876) 40 JP 536, (1876) 13 Cox 126; R vs. Stewart (1876) 13 Cox 296; R vs. Roberts (1878) 14 Cox 101, (1878) 42 JP 630, (1878) 38 LT 690; Gibbins vs. Skinner [1951] 2 K.B. 379, [1951] 1 All E.R. 1049, [1951] 1 T.L.R. 1159, (1951) 115 J.P. 360, 49 L.G.R. 713; Campbell vs. Wallsend Shipway and Engineering Co Ltd [1977] Crim LR 351; Dillon vs. R [1982] AC 484, [1982] 2 WLR 538, [1982] 1 All ER 1017, 74 Cr App R 274, [1982] Crim LR 438; Gage vs. Jones [1983] RTR 508; Kynaston vs. Director of Public Prosecutions, 87 Cr App R 200,et alia. 135.Granted that it’s an agreement, firmly grounded on the time-tested precept of sanctity of contract (originally coined as pancta sunt savanda, that agreements must be kept) which in cause and effect entrenches the norm that a Court of law cannot rewrite an agreement of parties, I entertain no incertitude in my mind that it’s not the province of this Court, properly directing its mind, to rewrite the agreement. 136.Gleaning from Article 157 of the Constitution, I conceive at least five cardinal principles emerging therefrom. 137.First, subject only to Article 157(11), the exercise of the power vested in the DPP is independent and not subject to directions of any person. See the Supreme Court of Kenya (hereinafter “the SCORK”) holding in Saisi & 7 others vs. Director of Public Prosecutions & 2 others (Petition 39 & 40 of 2019 (Consolidated)) [2023] KESC 6 (KLR) (Civ) (27 January 2023) (Judgment) (hereinafter “the Saisi case”), at paragraphs 81 & 83, where the Court held that “81. Article 157(6) of the Constitution empowers the DPP to institute and undertake criminal proceedings against any person before any Court in respect of any offence alleged to have been committed. Being one of the independent Constitutional offices established, article 157(10) of the Constitution safeguards this independence by decreeing that the DPP shall not require the consent of any person or authority before commencement of proceedings, neither shall he be under the direction or control of any person. That is not to say that this power is absolute. Article 157(11) requires the DPP in exercise of his duties to have regard for public interest, interests of administration of justice and to prevent or avoid abuse of the legal process… 83. We are also minded of this Court’s decision in Kenya Vision 2030 Delivery Board v Commission on Administrative Justice & 2 others, SC Petition No 42 of 2019; (2021) eKLR where the Court upheld the High Court’s position to the effect that in matters involving exercise of judgment and discretion, a public officer or public agency can only be directed to take action; it cannot be directed in the manner or the particular way the discretion is to be exercised. Further that the only exception where a Court can compel a public agency to implement a recommendation is where “there is gross abuse of discretion, manifest injustice or palpable excess of authority” equivalent to denial of a settled right which the petitioner is entitled, and there is no other plain, speedy and accurate remedy.” The position in the Saisi case was adopted by the SCORK in its subsequent decision in respect to a similar challenge of the DPP’s powers in Dande & 3 others vs. Inspector General, National Police Service & 5 others [2023] KESC 40 (KLR) (hereinafter “the Dande case”). 138.And so, in Geoffrey K. Sang vs. DPP & 4 Others [2020] eKLR, the Court held that “The DPP is not bound to prosecute simply because the investigating agencies have formed an opinion that a prosecution ought to be undertaken. The ultimate decision of what steps ought to be taken to enforce the criminal law is placed on the officer in charge of prosecution and it is not the rule, and hopefully it will never be, that suspected criminal offences must automatically be the subject of prosecution since public interest must, under our Constitution, be considered in deciding whether or not to institute prosecution.” 139.Although this Court acknowledges the fact that the decision was rendered before promulgation of the Constitution of Kenya 2010, the decisional independence of the DPP was especially accentuated by the Court of Appeal (Omolo, Tunoi & Lakha, JJA, as they then were) in Roy Richard Elirema & another vs. Republic [2003] KECA 165 (KLR), and it still remains good law post-2010 Constitution, where the Court expressed the following judicial view: “In Kenya, we think, and we must hold that for a criminal trial to be validly conducted within the provision of the Constitution and the Code, there must a prosecutor, either public or private, who must play the role of deciding what witnesses to call, the order in which those witnesses are to be called and whether to continue or discontinue the prosecution.” 140.A similar emphasis was voiced in Kipkoi Oreu Tasur vs. Inspector General of Police & 5 Ors (2014) eKLR, where the Court underscored as follows: “The criminal justice system is a critical pillar of our society. It is underpinned by the Constitution, and its proper functioning is at the core of the rule of law and administration of justice. It is imperative, in order to strengthen the rule of law and good order in society, that it be allowed to function as it should, with no interference from any quarter, or restraint from the superior Courts, except in the clearest of circumstances in which violation of the fundamental rights of individuals facing trial is demonstrated.” For a similar holding, see also Republic vs. Leonard Date Sekento [2019] eKLR; Mohammed Ali Swaleh vs. DPP & anor Ex Parte Titus Musau Ndome [2017] eKLR; Waweru Munyi Jackson vs. DCI & 4 others; Grace Wamboi Mukuna (Interested Party) [2021] eKLR; Ahmed Rashid Jabril & another vs. Director of Public Prosecutions [2020] eKLR; Diamond Hasham Lalji & another vs. Attorney General & 4 others [2018] eKLR; Johnson Kamau Njuguna & anor vs. DPP [2018] eKLR; Eunice Khalwali Miima vs. Director of Public Prosecutions & 2 others [2017] eKLR; Kipkoi Oreu Tasur vs. Inspector General of Police & 5 Ors (2014) eKLR; and Geoffrey K. Sang v DPP & 4 Others [2020] eKLR. 141.Second, the decision to prosecute is discretionary. In Thuita Mwangi & Anor vs. The Ethics and Anti-Corruption Commission & 3 Others Petition No. 153 & 369 of 2013 (hereinafter “the Thuita case”), DAS Majanja, J. (as he then was) expressed a judicial view that “The decision to institute criminal proceedings by the DPP is discretionary. Such exercise of power is not subject to the direction or control by any authority as Article 157(10)…These provisions are also replicated under Section 6 of the Office of the Director Public Prosecutions Act, No. 2 of 2013…In the case of Githunguri –vs- Republic (Supra at p.100), the Court observed…The Attorney General of Kenya…is given unfettered discretion to institute and undertake criminal proceedings against any person “in any case in which he considers it desirable so to do… this discretion should be exercised in a quasi-judicial way. That is, it should not be exercised arbitrarily, oppressively or contrary to public policy …” See also the Court of Appeal holding in Ethics and Anti-Corruption Commission vs. James Makura M’abira [2020] eKLR (hereinafter “the Makura case”), paragraphs 23-25. 142.Third, in light of the fact that the power to prosecute is discretionary, the DPP is hence not obligated to prosecute merely because the investigator forms a strong opinion that the suspect should prosecuted since the Constitution does not envisage situations where the investigator is also the prosecutor. The mere fact that the DPP’s decision differs from the opinion formed by the investigators is not a reason for interfering with the constitutional and statutory mandate of the DPP as long as the decision surmounts the test in Article 157(11) of the Constitution. In delineating the respective mandates between EACC and DPP in the Makura case, the Court of Appeal (Ouko (P), Koome, JA (as she then was), Makhandia, Murgor & J. Mohammed, JJA) held as follows: “[23] Both cases, that is the Kangangi and Susan Mbogo Ng’anga cases authoritatively state that the power to prosecute were then vested in the AG (now in the DPP), whereas the power to investigate was vested in KACC (now EACC). This is stated under Part IV of the Act which is headed “INVESTGATIONS” and states that the Director of KACC or a person authorized by him may conduct investigations on behalf of KACC. The provisions of that part are consistent with those in Section 7 in Part III that sets out the functions of KACC… [24] What happens after the investigations are completed, the two decisions are also in agreement, a position that we too agree was right, in that the power to prosecute under ACECA resided with the AG (now DPP). That the KACC was obligated under Section 35 of ACECA to submit the investigation report to the AG with recommendation that the person may be charged with the economic crimes. The decision whether to charge or not resided with the AG. This to us, is for the simple reason that an investigator cannot also be the prosecutor. It is also necessary to point out that the Court in the Kangangi case having found that a procedural step under Section 35 of ACECA was not followed, observed that the omission did not bar the appellant therein from being re-charged with the same offences upon the procedure being followed. The Court declined to quash the charges on the grounds that the merits thereto were not discussed.” See also the Sang case, at paragraphs 132-136, where Odunga, J. expressed the following rendition: “132. In my view, the mere fact that those entrusted with the powers of investigation have conducted their own independent investigations, and based thereon, arrived at a decision does not necessarily preclude the DPP from undertaking its mandate under the foregoing provisions. Conversely, the DPP is not bound to prosecute simply because the investigating agencies have formed an opinion that a prosecution ought to be undertaken. The ultimate decision of what steps ought to be taken to enforce the criminal law is placed on the officer in charge of prosecution and it is not the rule, and hopefully it will never be, that suspected criminal offences must automatically be the subject of prosecution since public interest must, under our Constitution, be considered in deciding whether or not to institute prosecution… 136. In my view, the discretion to be exercised by the DPP is not to be based on recommendations made by the investigative bodies. Therefore, the mere fact that the DPP’s decision differs from the opinion formed by the investigators is not a reason for interfering with the constitutional and statutory mandate of the DPP as long as he/she believes that he/she has in his/her possession evidence on the basis of which a prosecutable case may be mounted and as long as he takes into account the provisions of Article 157(11) of the Constitution as read with section 4 of the Office of Public Prosecutions Act, No. 2 of 2013… 144. Accordingly, I must make it clear that the 2nd Respondent herein, the Director of Criminal Investigations has no powers at all under our current legal frame work to present any charges before a Court of law particularly where the Director of Public Prosecutions, the 1st Respondent has not consented to the same.” Similarly, see R. vs. Director of Criminal Investigation Department & Others (2016) eKLR, where the respective powers between the DCI (an investigator) and DPP was considered indepth. 143.It follows that in his discretionary power, depending the evidence gathered, the DPP may decide to prosecute where it is considered that there is sufficient evidence or refuse to prosecute where it is considered that there is no sufficient evidence, the strong opinion of the investigator notwithstanding. While delineating the respective powers of the DPP and EACC, in Charles Okello Mwanda vs. Ethics and Anti-Corruption Commission & 3 Others (2014) eKLR, Mumbi Ngugi, J. rendered herself as follows: “I would also agree with the 4th Respondent (DPP) that the Constitutional mandate under 2010 Constitution with respect to prosecution lies with the 4th Respondent, and that the 1st Respondent has no power to ‘absolve’ a party and thereby stop the 4th Respondent from carrying out his constitutional mandate. Article 157(10) is clear…However, in my view, taking into account the clear constitutional provisions with regard to the exercise of prosecution powers by the 4th Respondent set out in Article 157(10) set out above, the 1st Respondent (EACC) has no authority to ‘absolve’ a person from criminal liability…so long as there is sufficient evidence on the basis of which criminal prosecution can proceed against a person, the final word with regard to the prosecution lies with the 4th Respondent (DPP) …” 144.The said discretionary power is not without a philosophical foundation. The philosophical foundation was elucidated by Sir Elwyn Jones in Cambridge Law Journal – April 1969 at page 49 as follows: “The decision when to prosecute, as you may imagine is not an easy one. It is by no means in every case where a law officer considers that a conviction might be obtained that it is desirable to prosecute. Sometimes there are reasons of public policy which make it undesirable to prosecute the case. Perhaps the wrongdoer has already suffered enough. Perhaps the prosecution would enable him present himself as a martyr. Or perhaps he is too ill to stand trial without great risk to his health or even to his life. All these factors enter into consideration.” This philosophical foundation was cited with approval by Odunga, J. in the Sang case. Similarly, in the Court of Appeal of Singapore in Ramalingam Ravinthran vs. Attorney General [2012] SGCA 2, at paragraph 53, the learned Judges (Chan Sek Keong CJ; Andrew Phang Boon Leong JA; V K Rajah JA) had the following to say: “The Attorney General is the custodian of prosecutorial power. He uses it to enforce criminal law not for its own sake but for the greater good of the society, i.e. to maintain law and order as well as to uphold rule of law. Offences are committed by all kinds of people in all kinds of circumstances. It is not the policy of the law under our legal system that all offenders must be prosecuted, regardless of the circumstances in which they have committed offences. Furthermore not all offences are provable in a Court of law. It is not necessary in the public interest that every offender must be prosecuted, or that an offender must be prosecuted for the most serious possible offence available in the statute book. Conversely, while the public interest does not require the Attorney General to prosecute any and all persons who may be guilty of the crime, he cannot decide at his own whim and fancy who should or should not be prosecuted and what offence or offences a particular offender should be prosecuted for. The Attorney General’s final decision will be constrained by what public interest requires.” This philosophy was recognized and adopted locally by in Republic v Director of Public Prosecutions & 2 others; Wanyama (Ex Parte Applicant) [2024] KEHC 7362 (KLR); Mbuthia v Attorney General & 3 others [2022] KECA 980 (KLR); Development Bank of Kenya Ltd v Director of Public Prosecutions & Inspector General of Police; Giriama Ranching Company Limited (Interested Party) [2020] KEHC 9416 (KLR); Joseph Karanja Kanyi t/a Kanyi J & Co Advocates v Director of Public Prosecutions, Ethics and Anti-Corruption Commission & Chief Magistrates’ Court, Mombasa; Kikambala Development Company Limited, Jane Njeri Karanja, Fredrick Otieno Oyugi, Maurice Milimu Amahwa, Ephraim Maina Rwingo, Seline Consultants Limited, Joan Zawadi Karema, Renson Thoya Juma, Harry John Paul Arigi, Joy Kavutsi Mudavadi alias Joy K Asiema & Kenya Ports Authority Retirement Benefit Scheme (Interested Parties) [2020] KEHC 5987 (KLR); Diamond Hasham Lalji & Ahmed Hasham Lalji v Attorney General, Director of Public Prosecutions, Commissioner of Police, Ethics & Anti-Corruption Commission & Banadurali Hasham Lalji [2018] KECA 856 (KLR), et alia. 145.Whereas section 87 of the CPC is couched in alternative and disjunctive terms - that the discontinuance can be effected either with the consent of the Court or on the instructions of the DPP and although the DPP is entitled to institute, undertake, take over and continue criminal proceedings - the power to discontinue prosecution is subject to permission of the Court under Article 157(8) of the Constitution, upon merit catapulted by cogent reasons consistent with the edicts enshrined in Article 157(11) of the Constitution. In granting the permission, the Court should be satisfied that the exercise of the power to discontinue the subject proceedings by the DPP, is consistent with public interest, the interests of the administration of justice and the need to prevent and avoid abuse of the legal process. And finally, granted that the power of the Court to grant permission is discretionary, it should be exercised judiciously. 146.Further, gleaning from Article 157(11) of the Constitution, the following are the cardinal principles which govern the power to discontinue criminal proceedings. 147.First, constitutional power is constrained power. See the SCORK rendition In the Matter of Council of Governors & 47 others (Reference 3 of 2019) [2020] KESC 65 (KLR) (15 May 2020) (Advisory Opinion) (with dissent - N Ndungu, SCJ), at paragraph 123, where the SCORK directed Judges as follows: “To achieve this aspiration Judges must courageously rise to the occasion and live up to their oaths of office by ensuring that “commitments, duties and obligations contained in the fundamental law of the land [are] scrupulously respected and enforced”, otherwise the “political stability [of our country] and [the] confidence required to attract investment” will be in jeopardy.11 The Judges must keep reminding the political class that there is no absolute Constitutional right12 and that Constitutional power is constrained power.” 148.Second, exercise of the DPP’s power to withdraw requires permission of the Court, which turns on public interest, the interests of the administration of justice and the need to prevent and avoid abuse of the legal process. See Article 157(11) of the Constitution as construed in the Taitumu case. In construing the interplay between section 87(a) of the CPC and Article 157 of the Constitution in the Taitumu case, DAS Majanja, J. (as he then was) had the following to say: “23. I now turn to consideration as to whether the Court may review the magistrates’ decision to discharge the petitioner. Although the Director of Public prosecutions is entitled to institute and undertake criminal prosecutions and take and continue over criminal proceedings under Article 157(6) of the Constitution, his responsibility to withdraw any criminal case is subject to the consent of the Court. Article 157(8) of the Constitution provides that, “The Director of Public Prosecutions may not discontinue a prosecution without the permission of the Court.” … 26. The petitioner argues that the learned magistrate did not exercise his discretion in accordance with the Constitution and the law. This Court is entitled to review the decision by the learned magistrate to determine whether it complies with legal standards… Section 87(a) of the CPC gives the learned magistrate broad discretion to accept or reject an Application for withdrawal of charges presented by the prosecutor. In light of Article 157(11) of the Constitution such discretion has to be exercised judiciously taking into account the facts of each case and in particular whether the Application is brought in the public interest, the interests of administration of justice and the need to prevent and avoid an abuse of the legal process.” In this connection, in Republic vs. Fahmi Salim Said [2013] KEHC 1743 (KLR) (hereinafter “the Said case”), the trial magistrate declined to grant a similar Application on ground of failure to demonstrate that it was in public interest and the High Court was approached to call the decision and satisfy itself as to the legality, propriety or correctness of the decision. Muya, J. had the following to say: “The Court is asked to make a declaration that a magistrates Court cannot exercise supervisory jurisdiction over actions of the Director of public prosecutions. I find that particular prayer to be very broad and lacking specificity. However, in respect to the matter at hand article 157 (8) of the constitution is very clear that the permission of the Court has to be sought before the withdrawal of a case by the Director of Pubic prosecutions. Secondly in exercising those powers conferred by the constitution article 157 (11) he 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. Those are the guiding factors to be adhered to before a withdrawal can be entertained. Now, what is the role of a magistrate in whose Court an Application for withdrawal of a case is made by the Director of public prosecutions… I do not think that the act of interrogating the reasons given by the DPP in withdrawing a case is tantamount to interpretation of the constitution which powers are donated to the High Court under article 165 of the Constitution. I do find that there was nothing sinister by the office of the DPP to call for the necessary files and make a decision on the matter. What I find to have been rather hasty is the decision to make an Application for withdrawal even before the necessary files had been perused. There is also the matter of the complainant herself. She ought to have been given a hearing before the Application was made more so because of the reasons that there is in existence a Civil Suit which is hinged on these criminal proceedings. A withdrawal of the criminal proceedings would invariably boost the Accused Civil Suit in which he has claimed loss of earnings of Ksh. 30,000/= per day as a result of Court attendances in the Criminal Cases against him. I do not find good grounds to interfere with the ruling of the learned trial magistrates dated 19th June, 2013. The cases will proceed to hearing as earlier ordered…” See also Ahmed Rashid Jabril & another vs. Director of Public Prosecutions [2020] eKLR, where the Court stated that “…the DPP has the legal and constitutional mandate to withdraw criminal cases instituted by itself or taken over by itself. In doing so, however, the DPP must obtain permission of the Court. It therefore behooves on the DPP that it must furnish justifiable reasons for such withdrawal or discontinuance. It is upon the furnishing of such justifiable reasons that the Court would proceed to allow the withdrawal or discontinuance…Again the element of consent of the Court is noted regarding Applications for withdrawal under section 87 of the Criminal Procedure Code. This can only mean that for the Court to issue the consent for the withdrawal, the prosecution must convince the Court by giving good reasons that would justify the action. A denial of the consent would properly ensue if no good reasons have been given.” 149.Third, although the DPP is independent and enjoys discretionary power, it does not at all imply that the exercise of his power is free from scrutiny by the Court to satisfy itself whether it surmounts the 157(11) constitutional test. And so, whenever faced with such an Application, it is not envisaged by the Constitution that the Court will be a mere rubber stamp or conveyer belt and certainly, it is not envisaged abuse of the power, for which the Court is then empowered to quash. See the SCORK holding in the Saisi case, at paragraph 82, although it's instructive to acknowledge that the guidelines were crafted in the context of quashing charges by a judicial review Court, they are equally forceful, relevant and thus deeply persuasive when faced with an application for discontinuation. In the Saisi case, SCORK held as follows: “Stemming from these provisions of the law, the Courts have consistently held that whenever it seems that the DPP is utilizing criminal proceedings to abuse the Court process, to settle scores or to put an Accused Person to great expense in a case which is clearly not otherwise prosecutable, then the Court may intervene. These decisions include Commissioner of Police & the Director of Criminal Investigation Department & another v. Kenya Commercial Bank Ltd & 4 others, Civil Appeal No 56 of 2012 (2013) e KLR by the Court of Appeal. It also includes the case of Cyrus Shakhalanga Khwa Jirongo v Soy Developers Ltd & 9 others, SC Petition No 38 of 2019; (2021) eKLR where this Court held that although the DPP is not bound by any direction, control or recommendations made by any institution or body, being an independent public office, where it is shown that the expectations of article 157(11) have not been met, then the High Court under article 165(3)(d)(ii) can properly interrogate any question arising and make appropriate orders…” The position in the Saisi case was adopted by the SCORK in the Dande case. See also Republic vs. Enock Wekesa & another [2010] KEHC 4133 (KLR), where the Prosecution Counsel presented a nolle presqui (to discontinue criminal proceedings against two Accused Persons) but the trial magistrate disallowed the Application on grounds that no reasons were assigned and the High Court was approached to call the decision and satisfy itself as to the legality, propriety or correctness of the decision. Koome, J. (as she then was, now CJ) rendered herself as follows: “5. According to Mr. Onderi, the learned Senior Principal Magistrate has no powers under the Constitution to question the writ of nolle prosequi. The Attorney General is authorized to enter nolle and is not bound to give any reasons to the trial Court. In this regard counsel made reference to the case of MWANGI AND SEVEN OTHERS VS ATORNNEY GENERAL {2002} 2KLR. 6. The other reason urged by the state counsel is that he is mandated by legal Notice No. 331 to exercise the powers under sections 81 and 82 of the Criminal Procedure Code. Under Kenya Gazzete supplement No. 61 he was similarly gazetted under the Constitution of Kenya 2010 to carry out the powers conferred under article 157(9) of the Constitution of Kenya thus he had the requisite authority to enter a writ of Nolle Prosequi which should not have been questioned by the trial magistrate… 8. I have considered the ruling by the learned trial magistrate and the reasons given for her refusal to grant leave to the State to enter the writ of Nolle Prosequi with an anxious mind for the reasons which will become clear in this ruing. Firstly, the learned trial Magistrate held that under the new Constitution the State Counsel should give reasons for the Court’s consideration and she rightly held that the Provisions of the Constitution overrides the provisions of the Criminal Procedure code. That holding is trite law, it is basic as provided for under Article 2 of the Constitution of Kenya 2010, I do not think that is the preserve of the High Court to determine. 9. The learned trial magistrate also held that the prosecution should have given reasons pursuant to the provisions of Article 157 (11) of the Constitution. Finally she made a finding that the Accused Persons are also facing a fourth count of gang rape which the writ of Nolle Prosequi did not address … 10. It is a general principle borne out of practice that the whole fundamental objective of the interpretation of statute is to give it the overarching objective which was meant by a particular legislation. The Constitution recognizes as fundamental respect of human rights, equality before the law and other values. The protection of human rights in my humble view includes those of the Accused Person(s) and also the complainant(s). This is in line with provisions of Article 159 (2) of the Constitution of Kenya 2010 which provides as follows: … 11. The above provisions resonate well with Provisions of Article 157(11) of the constitution; if the Director of Public Prosecutions decides to exercise his or her powers to enter a writ of Nolle Prosequi, they should have regard to the public interest, the interests in the administration of justice and the need to prevent and avoid abuse of the legal process. The learned trial magistrate was faulted for making a constitutional interpretation and questioning the powers granted to the learned State Counsel to enter the writ of nolle Prosequi. 12. As I understand the ruling by the learned Senior Principal Magistrate, she made an inquiry which can now be made under the Constitution so as to satisfy herself on whether the powers in the writ of nolle prosequi are in consonant with the provisions of the constitution. This is a thin line to be drawn on whether that enquiry is an interpretation of the constitution. The magistrate while exercising judicial powers must adhere to the principles set out in the constitution. By trying to satisfy herself that the order sought meets the thresholds set out in the constitution, that cannot be termed a usurpation of powers of the DPP… 14. Surely if the case were to be terminated, should the complainant not be given a reason? Should the Court that gives the leave to terminate the proceedings be a mere rubberstamp? Is asking questions that will satisfy the Court that there is no abuse of process interference with the powers of the Director of Prosecutions? The criminal charges that are before the learned trial magistrate involve both the Accused Persons and the complainants who were the victims. By the trial Magistrate seeking for reasons so as to satisfy herself that there is no abuse of the legal process cannot be said to overstep on the powers of the Director of Prosecutions. 16. Finally the learned trial magistrate also paused a very important question “what will happen to the fourth count of defilement?” this question was not answered by the State because the writ of nolle prosequi was only in regard to the offences of capital robberies. Even on this ground alone, the Court was entitled to dismiss the writ for being vague and abuse of the Court process.” {Emphasis supplied} 150.Fourth, in considering an allegation of abuse of the prosecution power, the Court should be guided by the following rays: whether continuation of the criminal proceedings is likely to amount to an abuse of the process of the Court; whether discontinuation is likely to secure the ends of justice; whether there is a legal bar against continuation of the said proceedings; whether the allegations do not prima facie constitute the offence alleged; or whether the allegations constitute an offence alleged but there is no prima facie evidence to prove the charges. See the Saisi case, paragraph 82, where the SCORK laid down the following guidelines which may be applied by the Court to gauge whether the DPP’s power has been abused or not: “… The Court found the following guidelines read alongside article 157(11) of the Constitution to be a good gauge in the interrogation of alleged abuse of prosecutorial powers: i. Where institution/continuance of criminal proceedings against an Accused Person may amount to the abuse of the process of the Court or that the quashing of the impugned proceedings would secure the ends of justice; ii. Where it manifestly appears that there is a legal bar against the institution or continuance of the said proceedings, eg. want of sanction; iii. Where the allegations in the First Information Report or the complaint take at their face value and accepted in their entirety, do not constitute the offence alleged; or iv. Where the allegations constitute an offence alleged but there is either no legal evidence adduced or evidence adduced clearly or manifestly fails to prove the charge.” These guidelines in the Saisi case were adopted by the SCORK in the Dande case. See also Reuben Mwangi vs. DPP & 2 others; UAP Insurance & another (Interested Parties) [2021] eKLR; Anthony Murimi Waigwe vs. Attorney General & 4 others [2020] eKLR, et alia. 151.Fifth, although the said discretionary power can be challenged, the Court should exercise its power sparingly and upset the discretion in exceptional circumstances and in the clearest of cases, where it is plain and obvious that there was improper exercise of the discretionary power. See Richard Malebe vs. Director of Public Prosecutions, Chief Magistrate’s Court (Anti-Corruption Court) (Nairobi) & Attorney General [2020] KEHC 5413 (KLR), at paragraph 149, where Mumbi Ngugi, J. expressed the following judicial view: “It cannot be disputed therefore that the position of our law is that in certain, albeit limited, circumstances, the Court may properly inquire into the propriety of the exercise of the discretion of the DPP to prosecute. Such an inquiry, as the cases above illustrate, must be undertaken in the clearest of cases. The question then, is whether the present case falls into that bracket. It would do so, as emerges from the cases set out above, if the facts and circumstances demonstrate a violation of the constitutional rights of the petitioner, or an improper exercise of the DPP’s prosecutorial discretion conferred under the Constitution.” Similarly, in Saisi & 7 others vs. Director of Public Prosecutions & 2 others (Petition 39 & 40 of 2019 (Consolidated)) [2023] KESC 6 (KLR) (Civ) (27 January 2023) (Judgment), the Supreme Court of Kenya (hereinafter “the SCORK”) was emphatic at paragraph 89 as follows: “We are emphatic that the High Court, whether sitting as a constitutional Court or a judicial review, may only interfere where it is shown that under article 157(11) of the Constitution, criminal proceedings have been instituted for reasons other than enforcement of criminal law or otherwise abuse of the Court process…” The position in the Saisi case was adopted by the SCORK in the Dande case. In Johnson Kamau Njuguna & anor vs. DPP [2018] eKLR, the Court crafted the following guidelines in considering whether the discretion can be upset: “It is now clear that even in the exercise of what may appear to be prima facie absolute discretion conferred on the executive, the Court may interfere. The Court can only intervene in the following situations: Where there is an abuse of discretion; Where the decision-maker exercises discretion for an improper purpose; Whether decision-maker is in breach of the duty to act fairly; Whether decision-maker has failed to exercise statutory discretion reasonably; Where the decision-maker acts in a manner to frustrate the purpose of the Act donating the power; Where the decision-maker fetters the discretion given; Where the decision-maker fails to exercise discretion; and Where the decision-maker is irrational and unreasonable. It is upon these criteria that the actions of the DPP in this case must be tested.” See also Diamond Hasham Lalji & another vs. Attorney General & 4 others [2018] eKLR, where the Court of Appeal held as follows: “Thus, the exercise of prosecutorial discretion enjoys some measure of judicial deference and as numerous authorities establish, the Courts will interfere with the exercise of discretion sparingly and in the exceptional and clearest of cases.” For a similar holding, see also Eunice Khalwali Miima vs. Director of Public Prosecutions & 2 others [2017] eKLR; Kipkoi Oreu Tasur vs. Inspector General of Police & 5 Ors (2014) eKLR; Reuben Mwangi vs. DPP & 2 others; UAP Insurance & another (Interested Parties) [2021] eKLR; Anthony Murimi Waigwe vs. Attorney General & 4 others [2020] eKLR, et alia. 152.What constitutes public interest? Since it has received no definition either in the Constitution or statutes, this Court resorts to secondary sources. The Black’s Law Dictionary (Black’s Law Dictionary, Definitions of the Terms and Phrases of American and English Jurisprudence, Ancient and Modern by Henry Campbell Black, M. A., 9th ed., 2009), at page 1350, defines the phrase ‘public interest’ as follows: “1. The general welfare of the public that warrants recognition and protection. 2. Something in which the public as a whole has a stake; esp., an interest that justifies governmental regulation.” 153.The most significant component of the public interest principle is the rule of law, now recognized by Article 10(2)(a) of the Constitution, which binds all State organs, State officers, public officers and all persons whenever either applying or interpreting the Constitution or enacting, applying or interpreting any law or making or implementing public policy decisions. Certainly, it is in the general welfare of the public and it deserves not only recognition but in addition jealous protection, that laws of the land are followed. It is not, certainly, in public interest if in the same name of public interest, laws are trampled upon in complete disregard of the rule of law embraced by Article 10 (2)(a) of the Constitution. It follows that the Constitution is a reflection of the supreme public interest and its provisions must be upheld by the Courts. The Constitution embraces the rule of law and Courts must stick to that path even if the public may in any particular case desire the opposite trajectory. 154.At no time, therefore, should public interest be confused or substituted with public agitation, although they sometimes converge. Public agitation, at times, is erroneously equated with public interest. Whereas public agitation is what the public wants - notwithstanding the firm position of the Constitution and laws of the land as recognized by section 3 of the Judicature Act and Article 2 (5) & (6) of the Constitution - public interest on the hand is what the public needs, in conformity with the same Constitution and the said laws thereunder. Notably and often, public agitation comes with a deep measure of annoyance if it’s not satisfied with the desired action. Speaking to this distinction in Christopher Ndarathi Murungaru vs. Kenya Anti-Corruption Commission & another [2006] eKLR (hereinafter “the Murungaru case”), the Court of Appeal (Omolo, Tunoi & O’Kubasu, JJA, as they then were) did not define what public interest constitutes but it described what it may include in the following words: “Lastly, before we leave the matter, Professor Muigai told us that their strongest point on the motion before us is the public interest. We understood him to be saying that the Kenyan public is very impatient with the fact that cases involving corruption or economic crimes hardly go on in the Courts because of Applications like the one we are dealing with. Our short answer to Professor Muigai is this. We recognize and are well aware of the fact that the public has a legitimate interest in seeing that crime, of whatever nature, is detected, prosecuted and adequately punished. But in our view, the Constitution of the Republic is a reflection of the supreme public interest and its provisions must be upheld by the Courts, sometimes even to the annoyance of the public. The only institution charged with the duty to interpret the provisions of the Constitution and to enforce those provisions is the High Court and where it is permissible, with an appeal to the Court of Appeal. We have said before and we will repeat it. The Kenyan nation has chosen the path of democracy; our Constitution itself talks of what is justifiable in a democratic society. Democracy is often an inefficient and at times a messy system. A dictatorship, on the other hand, might be quite efficient and less messy. In a dictatorship, we could simply round up all those persons we suspect to be involved in corruption and economic crimes and simply lock them up without much ado. That is not the path Kenya has taken. It has opted for the rule of law and the rule of law implies due process. The Courts must stick to that path even if the public may in any particular case want a contrary thing and even if those who are mighty and powerful might ignore the Court’s decisions. Occasionally, those who have been mighty and powerful are the ones who would run to seek the protection of the Courts when circumstances have changed. The Courts must continue to give justice to all and sundry irrespective of their status or former status…” 155.And so, in Mohammed Gulam Husseign Fazal Karmali & Hyundai Motos Kenya Limited vs. Chief Magistrate’s Court Nairobi & Attorney General [2006] KEHC 3433 (KLR) (hereinafter the Fazal case), Nyamu, J. used substantially the same language in describing public interest as follows: “Although the concept of public interest has somewhat been changing with the times and evasive of a precise definition, in the context of Kenya, public interest is reflected for example in securing and enforcing the fundamental rights and freedoms. It is also reflected in the limitations to those rights and freedoms by law, for example in limitations that are reasonably required in the interest of defence, public safety, public order, public morality or public health or for the purpose of protecting the rights of others, as stipulated in the Constitution.” In the Fazal case, Nyamu, J. proceeded to lay down the following test in determining whether something is in public interest or not: “Public interest is also capable of being defined by the answer to the following questions: (1) If the interest affected has a general Application; (2) Is there a collection or commercial interest and are public moneys being expended and to what extent and purpose in the interest under scrutiny; (3) Whether the public or community at large can reasonably and legitimately expect fair play in the decision making process.” 156.Superior Courts have laid a caution against the temptation of a Court to elect convenience at the expense of the rule of law. In one such cautions, Ringera, J. (as he then was) in Kinyanjui vs. Kinyanjui [1995-98] 1 EA 146 (hereinafter the “Kinyanjui case”) sounded the following caution: “For a Court of law to shirk from its constitutional duty of granting relief to a deserving suitor because of fear that the effect would be to engender serious ill will and probable violence between the parties or indeed any other consequences would be to sacrifice the principle of legality and the dictates of the rule of law at the altar of convenience as would be to give succour and sustenance to all who can threaten with sufficient menaces that they cannot live with and under the law.” 157.The rendition of public interest in the Murungaru case was applied by Odunga, J. in Republic vs. Commissioner of Lands & Another Ex Parte Chetan Devji Shah & Another [2011] eKLR. Further, the judicial view on public interest in the Kinyanjui case was applied by Odunga, J. in Republic vs. Director of Public Prosecution & another Ex Parte Chamanlal Vrajlal Kamani & 2 others [2015] eKLR. 158.If a body is constituted or an act done in public interest but it disregards the law, then it defeats the very public interest for which it was constituted or done. See Republic vs. Judicial Commission of Inquiry into The Goldenberg Affair & 2 others Ex-parte George Saitoti [2006] KEHC 3533 (KLR), where Nyamu, Wendoh & Emukule, JJ. reached a conclusion that “It is also vital to mention that the Commission was appointed in the public interest. However any disregard of the relevant law defeats that public interest. Legitimate expectation is after all about fairness.” 159.Similarly - like in the Murungaru case - in British American Tobacco Kenya Ltd vs. Cabinet Secretary for the Ministry of Health, Tobacco Control Board & Attorney General of Kenya [2015] KEHC 8193 (KLR), Mumbi Ngugi, J. (as she then was) also avoided defining the phrase public interest and instead described what it envisages as follows: “53. I however, also agree with the petitioner that the public interest demands that laws and processes that are laid down for the enactment of legislation and regulations to control any industry should be followed. It may, in the long term, do greater damage to the public interest to turn a blind eye on allegations of constitutional or fundamental rights violations or threat of violation, where a prima facie case has been made out, in the name of protecting the public interest.” This judicial view was adopted in Republic vs. Ministry of Health, Cabinet Secretary Ministry of Health & Attorney General Ex-parte Kennedy Amdany Langat & 14 others & Amit Kwatra & 12 others [2018] KEHC 5221 (KLR) (hereinafter “the Amdany case”), by Aburili, J. 160.In circumstances where the public and private interests are equally compelling, public interest must prevail. See paragraph 135 of the Amdany case. 161.The overarching objective of the interests of the administration of justice as envisaged by Article 157 (11) of the Constitution is to do justice to all irrespective of status and avoid abuse of the legal process. See the Wekesa case, paragraph 13. In Modevao vs. Department of Labour [190] INZLR 464 at 481-482, which was cited in approval in the Fazal case, Manson CJ quoted in JAGO (1989) 168 CLR at 30, where Richardson J, reproduced the two policy considerations as follows: “The first is that the public interest in the administration of justice require that the Court protects its ability to function as a Court of law by ensuring that its processes are used fairly by state and citizen alike. The second is that, unless the Court protects its ability to function in that way its failure will lead to an erosion of public confidence by reason of concern that the Courts processes may lend themselves to oppression and injustice…” 162.Abuse of the process essentially means that a Court’s function and authority reposed by Article 159 of the Constitution should not be misused for purposes other than the one envisaged thereunder. The process of the Court must thus be used properly, honestly, and in utmost good faith with the aim of attaining justice. Put differently, the process of the Court should not be used improperly, dishonestly, in bad faith, driven with the intention to vex or oppress or ulterior purposes. See Bullen, Leak and Jacob’s precedents of pleadings, 12th ed., at page 148, which defines the phrase as follows: “The term “abuse of the process of the Court” is a term of great significance. It connotes that the process of the Court must be carried out properly, honestly and in good faith; and it means that the Court will not allow its functions as a Court of law to be misused but will in a proper case, prevent its machinery from being used as a means of vexation or oppression in the process of litigation.” 163.The concept of abuse of the process was discussed in Jared Benson Kangwana vs. Attorney General Nairobi High Court Misc. Application No. 446 of 1995 (unreported) (hereinafter “Kangwana Case”) Khamoni, J. reasoned that “The essence of abuse as stated in the case of Spautz v Williams...is that: ‘the proceedings complained of were (instigated and) instituted and/or maintained for a purpose other than that for which they were properly designed or exist or to achieve for the person (instigating), instituting them some collateral advantage beyond that which the law offers, or to exert pressure to effect an object not within the scope of the process.” 164.The Court of Appeal (Omollo, Akiwumi & Bosire, JJA, as they then were) in J.P. Machira T/A Machira & Company Advocates vs. Wangethi Mwangi & another [1998] eKLR, defined it as follows: “Abuse of the process of the Court means in brief, misuse of the Court machinery or process.” See also George P. B. Ogendo v James Nandasa & 4 others [2006] eKLR, per GBM Kariuki, J. (as he then was). 165.In an Australian decision namely Jago vs. District Court of NSW and Others [1989] HCA 46, which was adopted by Odunga, J. in Republic vs. Director of Public Prosecution & another Ex Parte Chamanlal Vrajlal Kamani & 2 others [2015] eKLR, the Court exemplified how an abuse of the process of Court happens in the following words: “An abuse of process occurs when the process of the Court is put in motion for a purpose which, in the eye of the law, it is not intended to serve or when the process is incapable of serving the purpose it is intended to serve. The purpose of criminal proceedings, generally speaking is to hear and determine finally whether the Accused has engaged in conduct which amounts to an offence and, on that account, is deserving of punishment. When criminal process is used only for that purpose and is capable of serving that purpose, there is not abuse of process...When process is abused, the unfairness against which a litigant is entitled to protection is his subjection to process which is not intended to serve or which is not capable of serving its true purpose. But it cannot be said that a trial is not capable of serving its true purpose when some unfairness has been occasioned by circumstances outside the Court’s control unless it be said that an Accused Person’s liability to conviction is discharged by such unfairness. This is a lofty aspiration but it is not the law.” And in Lawrence vs. Lord Norreys, 15. A.C. 210 at p. 219, cited in approval by the Court of Appeal in D.T. Dobie & Company (Kenya) Limited vs. Joseph Mbaria Muchina & Another [1980] eKLR, Lord Herschell expressed himself as follows: “It cannot be doubted that the Court has an inherent jurisdiction to dismiss an action which is an abuse of the process of the Court. It is a jurisdiction which ought to be very sparingly exercised. and only in exceptional cases. I do not think its exercise would be justified merely because the story told in the pleadings was highly improbable, and one which it was difficult to believe could be proved.” In Jared Benson Kangwana vs. Attorney General Nairobi High Court Misc. Application No. 446 of 1995 (UR), Khamoni, J. (as he then was) had this to say about abuse of the Court process: “The essence of abuse as stated in the case of Spautz v Williams...is that: ‘the proceedings complained of were (instigated and) instituted and/or maintained for a purpose other than that for which they were properly designed or exist or to achieve for the person (instigating), instituting them some collateral advantage beyond that which the law offers, or to exert pressure to effect an object not within the scope of the process…whether there are circumstances which will make the proceedings an abuse of the process of the Court. Acts of such abuse are not restricted to what the prosecution or the State does but extend to acts of any party…and the prosecution or the Respondent should not be telling this Court not to rely on anything done by the victim to decide whether there is an abuse...The Court should ask whether its process is being fairly invoked…The functions of abuse of the process of the Court are not limited to what the prosecution or the State or the Court does. They extend to what any other interested party, like the person aggrieved, does and case authorities have shown that it is not the events at the trial that necessarily give rise to the granting of a prohibition on the ground of abuse of the process of the Court. They can be events outside the Court. They can be events not done by the State but done by the person aggrieved who succeeds in getting the unsuspecting State or Public Prosecutor to prosecute the Accused Person…to institute civil and criminal proceedings to exert pressure for the payment of a debt bonafide disputed, when those civil and criminal proceedings are not for the purpose of deciding the disputed debt or are not under the law which make provisions for deciding the disputed debt, constitutes an abuse of the process of the Court…” 166.And in Williams vs. Spautz [1992] 66 NSWLR 585, at page 600, the High Court of Australia observed that “If the proceedings obviously lack any proper foundation in the sense that there is no evidence capable of sustaining a committal, they will obviously be vexatious and oppressive. In such a case, the proceedings themselves are an abuse of the process of the Local Court and will inevitably result in the discharge of the Defendant...And that the charges against the Defendant lack any foundation, the Supreme Court would be justified in intervening to halt the proceedings in limine in order to prevent the Defendant from being subjected to unfair vexation and oppression...For a man to be harassed and put to the expense of perhaps a long trial and then given an absolute discharge is hardly from any point of view an effective substitute for the exercise by the Court [of its inherent power to prevent abuse of its process.” 167.It follows that a Court of law is enjoined by the Constitution to nip a prosecution, if the criminal proceedings were instituted for extraneous matters and/or nefarious reasons, divorced from the interests of the administration of justice as envisaged by Article 157 (11) of the Constitution which is to do justice to all, irrespective of status. See the Kuria case, where Court held that “The Court has power and indeed the duty to prohibit the continuation of the criminal prosecution if extraneous matters divorced from the goals of justice guide their instigation. It is a duty of the Court to ensure that its process does not degenerate into tools for personal score-settling or vilification on issues not pertaining to that which the system was even formed to perform...” See also R vs. DPP & Others Ex Parte Qian Guo Jun & Anor [2013] eKLR. 168.It further follows that in exercising the discretionary power, it should be exercised judiciously and not to merely undertake prosecution anyway with the mentality that the suspect will anyway raise whatever defences he has in the trial Court, notwithstanding the fact that it would not have been necessary in the first place. See R. vs. The Judicial Commission into the Goldenberg Affair and 2 Others exp Saitoti HC Misc Appl. 102 of 2006, where the Court reasoned that “It is not good for the DPP to argue that the Applicant should be arrested and charged so that he can raise whatever defences he has in a trial Court. The Court has a constitutional duty to ensure that a flawed threatened trial is stopped in its tracks if it is likely to violate any of the Applicants.” 169.Having abundantly illuminated the legal framework within which this question should be determined, I now turn to examine and consider the merits of the considerations, reasons and evidence advanced in support of this Application (to withdraw from prosecuting the Accused) in the context of the foregoing legal framework. 170.EACC has impugned the agreement on the basis of illegality. Is there an illegality to warrant rejection of the agreement? Did the DPP abuse his discretionary power in negotiation and selection of appropriate terms of the Plea Agreement? Is the justification advanced by the DPP consistent with Article 157(11) of the Constitution? 171.And so, when a dispute over an agreement of parties is committed to a Court of law for interpretation, the primary province of the Court remains to be interpretation and giving effect to the intention of the parties. This is the norm and of course, for every norm, there is an exception. In this regard, there are decidedly limited inroads to this norm. Except where vitiating factors such as illegality (including but not limited to abuse of power; and disregard of not only public interest but also interests of administration of justice and the need to prevent and avoid abuse of the legal process), fraud, coercion, undue influence, or unconscionable terms are demonstrated, the quashing power of the Court cannot deploy. Needless to add, mere assertions of illegality, abuse of discretionary power, fraud, coercion, undue influence, or unconscionable terms cannot suffice. Courts of law can only intervene in the said exceptional circumstances to especially protect a vulnerable party. See restatement of this principle by SCORK in Stanbic Bank Kenya Ltd v Santowels Ltd (Petition E005 of 2023) [2024] KESC 31 (KLR) (28 June 2024) (Judgment). 172.Whereas judicial deference to the discretionary power reposed in the DPP is the norm, unsettling an act done by the DPP in exercise of his discretionary power is the exception. It’s now a settled principle that whereas a Court of law reserves power to inquire into how discretionary power was exercised by the DPP if only to detect abuse or improper or bad faith or gross abuse of discretion or manifest injustice or palpable excess of authority, a Court of law cannot dictate how the DPP exercises discretionary power. See the SCORK rendition in Saisi & 7 others v Director of Public Prosecutions & 2 others (Petition 39 & 40 of 2019 (Consolidated)) [2023] KESC 6 (KLR) (Civ) (27 January 2023) (Judgment), and in particular paragraphs by 76 and 83. For a similar principle, see the most recent SCORK rendition in Wafula v Director of Public Prosecutions; Ethics and Anti-Corruption Commission & 2 others (Interested Parties) (Petition E045 of 2024) [2025] KESC 46 (KLR) (11 July 2025) (Judgment), paragraphs 57 and 68 where the SCORK pronounced itself as follows: “68. It is acknowledged that prosecutorial discretion is generally accorded judicial deference and that Courts will only interfere in the clearest and most exceptional of cases. As emphasized in Jirongo v Soy Developers Ltd & 9 Others (supra), this Court, citing the Supreme Court of India in RP Kapur v State of Punjab AIR 1960 SC 866, laid down guidelines to be considered by the High Court when reviewing prosecutorial powers. They are as follows: I. Where institution/continuance of criminal proceedings against an accused may amount to the abuse of the process of the Court or that the quashing of the impugned proceedings would secure the ends of justice; or II. Where it manifestly appears that there is a legal bar against the institution or continuance of the said proceeding, eg want of sanction; or III. Where the allegations in the First Information Report or the complaint taken at their face value and accepted in their entirety, do not constitute the offence alleged; or IV. Where the allegations constitute an offence alleged but there is either no legal evidence adduced or evidence adduced clearly or manifestly fails to prove the charge.” 173.Similarly, in Lalji & another v Attorney General & 4 others (Civil Appeal 274 of 2014) [2018] KECA 856 (KLR) (19 January 2018) (Judgment), the COA held that the exercise of prosecutorial discretion used by the DPP enjoys some measure of judicial deference, unless illegality, irrationality and procedural impropriety is demonstrated. 174.It follows that in the context of the Plea Agreement, in circumstances where the ODPP has properly exercised its discretionary power in entering into the Plea Agreement, it will be improper if this Court substitutes the terms with its own preference, without offending this time-tested principle. What’s open to this Court, in the circumstances, is to subject the Plea Agreement to the substantive legality test. 175.Certainly, it’s now a settled principle that the exercise of powers of the DPP, including but not limited to negotiation and entry into a Plea Agreement including electing the options of bargaining under 137A(1) of the CPC, cannot be exercised in a laissez faire or whimsical manner since constitutional power is constrained power. See the SCORK rendition In the Matter of Council of Governors & 47 others (Reference 3 of 2019) [2020] KESC 65 (KLR) (15 May 2020) (Advisory Opinion) (with dissent - N Ndungu, SCJ), at paragraph 123, where the SCORK directed Judges as follows: “To achieve this aspiration Judges must courageously rise to the occasion and live up to their oaths of office by ensuring that “commitments, duties and obligations contained in the fundamental law of the land [are] scrupulously respected and enforced”, otherwise the “political stability [of our country] and [the] confidence required to attract investment” will be in jeopardy.11 The Judges must keep reminding the political class that there is no absolute Constitutional right12 and that Constitutional power is constrained power.” 176.It follows that exercise of the DPP’s powers must surmount the triple test under Article 157(11) of the Constitution. See a similar discussion by this Court in Director of Public Prosecutions v Gabreil Bukachi Chapia aka Gabriel Bukachi Chapia, Milimani MCAC No. E041 of 2024 (now reported as Director of Public Prosecutions v Chapia & another (Anti-Corruption Case E041 of 2020) [2024] KEMC 46 (KLR) (Anti-Corruption and Economic Crimes) (25 November 2024) (Ruling)). 177.Accordingly, the test upon which acceptance or rejection of this Plea Agreement Application turns, is whether the reason or reasons advanced surmount the triple test resident in Article 157(11) of the Constitution. 178.The inventory of grounds upon which the DPP can exercise his power to discontinue criminal proceedings under pursuant to Article 157 of the Constitution and section 137A(1)(b) of the CPC has never and cannot possibly close any time soon since the obligation reposed upon a Court to develop the law under Article 259 of the Constitution does not envisage closure, provided that the ground or grounds advanced surmount the said triple test under Article 157(11) of the Constitution. 179.This decision necessarily demands this Court to strike a delicate balancing act. This particular Plea Agreement brings to the fore not only the petulant but pertinent question of withdrawal envisaged under section 137A(1)(b) of the CPC, but also, from the administration of justice perspective, the ever-dicey interplay between civil and criminal anti-corruption tools and in particular, the interface between the civil versus criminal forfeiture, and whether once a civil forfeiture has been successfully pursued by Ethics and Anti-Corruption Commission (hereinafter “EACC”) through alternative forms of dispute resolution as envisaged by Article 159(2)(c) of the Constitution like was the case here, the forfeiture can constitute a pivotal or cornerstone factor in determining the pathway to take in plea bargaining, in certain circumstances. 180.It then becomes incumbent upon this Court to interrogate the specific grounds assigned by the DPP in the Plea Agreement to fortify the decision to elect plea bargaining by discontinuation of all the charges permissible under section 137A(1)(b) of the CPC. 181.What were the reasons, factors, grounds and considerations underpinning withdrawal as the pathway agreed by the parties to this Plea Agreement? In compliance with the obligation fastened to the DPP vide section 137H of the CPC, this Court did direct and the DPP did lay before this Court, the factual basis of this Plea Agreement. The following eight assorted reasons, factors, grounds and considerations were advanced in support of the pathway of withdrawal taken in the Plea Agreement:a.First, in electing withdrawal under section 137A(1)(b) of the CPC, the DPP reasons that section 137A(1)(b) of the CPC provides for withdrawal of a charge by the prosecutor as one of the options available in plea negotiations.b.Second, the DPP informed this Court that in arriving at the withdrawal option under section 137A(1)(b) of the CPC, parties took into account the fact that in the Settlement Agreement entered into between EACC and the Accused Persons in High Court ACEC Cases Numbers 32 of 2018 and E010 of 2022, the Accused Persons forfeited properties valued at Kshs. 235,000,000, plus two motor vehicles, which is more than three times the value of the property alleged in the charges(estimate at Kshs. 73,500,000). The DPP advanced a compelling argument that since the public property which informed the substance of the charges in this matter is the same public property which informed High Court ACEC Cases Numbers 32 of 2018 and E010 of 2022, and that ordinarily, that the mediation in the two High Court Civil Suits which resulted in the stated Settlement Agreement, achieved the same goal which would have been achieved in this Plea Agreement, leaving the option of withdrawal under section 137A(1)(b) of the CPC as the most feasible and reasonable pathway in this Plea Agreement to serve the interests of administration of justice, public interest and prevent abuse of the Court process. The DPP adds that the compromise terms in the Plea Agreement would have been the same terms which were set out in the civil Settlement Agreement, but for the fact that the civil Settlement Agreement preceded the Plea Agreement bearing a consequential effect upon the Plea Agreement which made it impossible to set and repeat the same terms of the civil Settlement Agreement in the Plea Agreement without offending the principle of double jeopardy. In this connection, the DPP urges that having taken into account the provisions of article 157 (11) of the Constitution, the circumstances surrounding previous civil and the present criminal negotiations, it was deemed in the interest of administration of justice, public interest and prevention of abuse of the legal process to elect withdrawal of the charges as the most reasonable pathway in the plea bargaining negotiations.c.Third, the DPP contends that the correspondence between EACC (investigator) and defence team in the run up to the Settlement Agreement in High Court ACEC Cases Numbers 32 of 2018 and E010 of 2022, reveals that the criminal case herein was included in the negotiations.d.Fourth, the Accused Persons contend that in their correspondence leading to the Settlement Agreement in High Court ACEC Cases Numbers 32 of 2018 and E010 of 2022, their request for negotiations not only spoke to the said civil cases but also this criminal case.e.Fifth, the DPP and the Accused Persons thus urge this Court to find that the Accused Persons having forfeited the stated property valued at 235,000,000 and two motor vehicles, which is more than three times the value of the property alleged in the charges (estimate at Kshs. 73,500,000), in an effort to settle both the civil and criminal cases against them, this Court should find that the said restitution serves the interests of justice as opposed to embarking on a long and cumbersome trial that might end up with no conviction. The DPP in particular urges this Court to find that the Plea Agreement sits on all fours of the provisions of sections 137A-O of the CPC and Article 157(11) of the Constitution, advancing that the DPP exercised his powers within the ambits of Article 157 of the Constitution after consulting the investigating officer and taking into consideration that the Accused Persons had already acquiesced to having property of more than three times the amount in the charges forfeited to the state in the said High Court civil suits.f.Sixth, regarding the need to prevent and avoid abuse of the legal process, it is argued by the Accused Persons that it is closely related to the interest of administration of justice and that in the Australian decision namely Jago v District Court of NSW and Others [1989] HCA 46, which was adopted by Odunga, J. (as he then was) in Republic v Director of Public Prosecution & Ethics and Anti-Corruption Commission Ex Parte Chamanlal Vrajlal Kamani, Deepak Chamanlal Kamani & Rashmi Chamanlal Kamani [Judicial Review Application 78 of 2015 , the Court stated as follows: “An abuse of process occurs when the process of the Court is put in motion for a purpose which, in the eye of the law, it is not intended to serve or when the process is incapable of serving the purpose it is intended to serve.” In this connection, it is argued that whereas the institution of legal proceedings against the Accused Persons herein for suspected criminal activities cannot in itself be termed as an abuse of the legal process, the attendant processes might constitute an abuse and that since the institution of the legal proceedings, circumstances have fundamentally changed occasioned by the High Court ACEC Cases Numbers 32 of 2018 and E010 of 2022 Settlement Agreement, where the Accused Persons forfeited properties valued at Kshs. 235,000,000, plus two motor vehicles, which is more than three times the value of the property alleged in the charges (estimate at Kshs. 73,500,000), making the continuation thereof to be an abuse of the legal process. It is argued that subjecting the Accused Persons to further prosecution defeats the whole purpose of the restitution and furthermore, one cannot be faulted for perceiving an ulterior motive in further prosecution given that more of the Court’s time and resources will be spent whereas the objectives of the criminal justice system in this particular instance have already been achieved through the restitution, citing Kuria & 3 Others v Attorney General [2002] where it was held that “The Court has power and indeed the duty to prohibit the continuation of the criminal prosecution if extraneous matters divorced from the goals of justice guide their instigation.”g.Seventh, regarding the question whether the withdrawal is in public interest, it is submitted that the decision by the DPP to have a plea bargain agreement withdrawing the cases against the accused seeks further to safeguard public interest, arguing that this case has been before the Court for six (6) years with only one witness giving his evidence in chief and its continued prosecution consumes public funds and judicial time which should all be zealously guarded, citing the reasoning of Mutava J, in Republic v Attorney General & 3 others; Pattni (Ex parte) [2013] KEHC 6092 (KLR), where it was stated that“92. Indeed, I am gratified to note that although my judgment has been arrived at purely on the basis of analysis of facts, evidence and the law, the conclusion reached echoes opinions already made public by commentators who have raised concerns as to the cost and time implications of inordinate delay in getting old graft cases finalized. In a headline report published in “the Standard” newspaper of 11th July 2011, the Chief Justice of the Republic of Kenya Dr. Willy Mutunga was reported to have said: “We are either serious (on old graft cases) or count our losses, drop them and stop throwing good money after bad. KACC should initiate public discussions and seek national consensus”. 93. In the same newspaper, the then KACC Director Dr. Patrick Lumumba was quoted as stating:” “Old corruption cases must be finalized. Goldenberg cases are in Court. We will not be prisoners of our past, but the rear-view mirror will be in us”.h.Eight, concerning the threat to independence of the DPP, it is argued that Article 157 of the Constitution vests the exclusive authority to institute and discontinue criminal proceedings in the DPP and this discretion is not mechanical but a constitutional safeguard designed to ensure that prosecutorial decisions are exercised judiciously, with due regard to the public interest, the interests of the administration of justice, and the need to prevent abuse of legal process. It is argued that the DPP is not compelled to prosecute every matter presented, but rather to weigh the facts and circumstances of each case to determine whether prosecution serves justice or merely perpetuates unnecessary litigation, citing the reasoning in Republic v Nyakundi [2023] KEHC 1063 (KLR). It is submitted that EACC’s mere assertions that the plea negotiated is against public interest are not sufficient, having failed to illustrate the violation of any of the principles set out in the Nyakundi decision. In this connection, it is argued that the Accused Persons have already, through a civil process before the High Court and with a binding agreement with the EACC, forfeited assets to the State valued at more than three times the amount allegedly lost and that this forfeiture was voluntary and adopted by the Court and EACC expressly acknowledged the adequacy of the restitution given and that the State has therefore been compensated far beyond the alleged loss, achieving the very objective of recovery and deterrence and that no prejudice will be suffered by the general public if the Plea Agreement is adopted by the Court. 182.It is on the foregoing context that the DPP and Accused Persons urge this Court to adopt the Plea Agreement as a judgment of this Court. 183.This factual basis is largely uncontroverted by EACC. What is fervently contested is the legal basis of the withdrawal. In this Plea Agreement, parties settled on withdrawal pathway and in this connection, EACC argued that the Plea Agreement has failed the statutory requirements set out in section 137A(1)(a), (b) & (2) of the CPC and in particular, that a proper Plea Agreement is conviction-based (and must result in admission of criminal liability). It will be recalled that under question (a)(iv) above, this Court did reject the thesis advanced by EACC that a proper Plea Agreement must result in admission of criminal liability, having found it unfounded in law. And this Court did hold that if it were so, nothing would have been easier for parliament than to say so and further that there are possible circumstances, consistent with Article 157(11), which necessarily befit the option of withdrawal under section 137A(1)(b) of the CPC. 184.I must underline that this question presents a legal conundrum. While reflecting on the vocation of judging, in his Book titled Judicial Activism, 1975, Lord Edmund-Davis wrote as follows: “Whatever a judge does, he will most surely have his critics. If, in an effort to do justice, he appears to make new law, there will be cries that he is overweening and that he has rendered uncertain what had long been regarded as established legal principles. On the other hand, if he sticks to the old legal rules, an equally vocal body will charge him with being reactionary, a slave to precedent, and of failing to the mould the law to changing social needs. He cannot win, and, if he is wise, he will not worry, even though at times he ruefully reflects that those who should know better seem to have little appreciation of the difficulties of his vocation. He will just direct himself to the task of doing justice in each case as it comes along. No task could be nobler.” 185.Under question (a)(iv) determined above, this Court did conclude that there are three possible pathways/options envisaged by law namely: (i) reduction of a charge to a lesser included offence; and/or (ii) withdraw the charges; and/or (iii) stay other charges or promise not to proceed with other possible charges. See section 137A(1)(a) & (b) of the CPC. 186.It bears repeating that unless there’s demonstrated unmistakable flagrant abuse of discretionary power by the DPP, the Court should ordinarily defer to power reposed upon a state organ and exercised within the remits of the law conferring it. Is this basis consistent with public interest, interest of administration of justice and intention to avoid abuse of the legal process? 187.We have civil and criminal forfeiture. Both anti-corruption tools achieve the same goal of expression of disapproval by the people, withdrawing the benefits of corruption, deactivating it, discouraging like-minded people and rendering it distasteful. In the end, it actualizes the axiom that corruption does not pay. The spirit of alternative forms of dispute resolution sanctioned by Article 159(2)(c) of the Constitution which informs plea bargaining is to widen the pathways to justice and expedite it with due regard to public interest, the interests of the administration of justice and the need to prevent and avoid abuse of the legal process. 188.In negotiations, the said alternative forms of dispute resolution embrace the give-and-take spirit, provided that the give-and-take pays due regard to public interest, the interests of the administration of justice and the need to prevent and avoid abuse of the legal process. It's instructive to underscore that the same provision of the Constitution - Article 159(2)(c) - which was invoked by EACC to enter into the said Settlement Agreement between EACC and the Accused Persons in High Court ACEC Cases Numbers 32 of 2018 and E010 of 2022, is the same provision which was invoked by the DPP. 189.Having carefully considered the challenge, this Court finds, concludes and holds as follows: 190.First, this Court is satisfied that none of the charges relate to the offences ousted by section 137N of the CPC namely genocide, war crimes, crimes against humanity and those defined by the Sexual Offences Act. 191.Second, having addressed my judicial mind to the factual basis coupled with the eight assorted reasons, factors, grounds and considerations in support of the pathway of withdrawal taken in the Plea Agreement, this Court finds it neither idle nor merely speculative. See the Chapia decision, where this Court held that if the decision by the DPP is underpinned by speculative reasons, it will certainly fail the triple test under Article 157(11) of the Constitution. In particular, concerning the interface between civil and criminal anti-corruption tools and in particular, the interface between the civil and criminal forfeiture where both cases arise from the same set of facts, I am of the judicial persuasion that they are not mutually exclusive as propounded by EACC. Instead, where a civil forfeiture has been successfully pursued through alternative forms of dispute resolution as envisaged by Article 159(2)(c) of the Constitution like was the case here, in the course of considering appropriate factors which will determine the pathway the Plea Agreement will take under section 137(1)(a) & (b) of the CPC and which best commends itself to the triple test under Article 157(11) of the Constitution, this Court is of the judicial persuasion that the forfeiture in the civil case ought constitute one of the pivotal or cornerstone factors in determining the pathway to take in plea bargaining, but certainly not the only one. In connection to the foregoing, this Court is persuaded by the thesis advanced that the civil forfeiture which was achieved in the Settlement Agreement entered into between EACC and the Accused Persons in High Court ACEC Cases Numbers 32 of 2018 and E010 of 2022, where the Accused Persons forfeited properties valued at Kshs. 235,000,000, plus two motor vehicles, would have as well been achieved in the criminal proceedings through the plea bargaining and in this connection, concerning the interface between civil forfeiture and criminal forfeiture, this Court is persuaded that the terms of the civil Settlement Agreement did bear a consequential effect upon the plea negotiations, both cases having been based on the same set of facts. This Court also persuaded that since the civil forfeiture achieved the same goal which would have been achieved by the criminal forfeiture, but for the fact that the said civil forfeiture preceded the plea bargaining, it cannot be said to run against the grain of public interest by the mere fact that the Plea Agreement adopted the legally sanctioned withdrawal option under section 137A(1)(b) of the CPC as the only practicable and reasonable pathway, which effectively served the goal of expression of disapproval by the people, withdrawing the benefits of corruption, deactivating it, discouraging like-minded people, rendering it distasteful and sent a strong message that corruption does not pay. Consequently, this Court finds the considerations which led to the pathway elected in the Plea Agreement compelling since, in practical terms, the terms of the civil Settlement Agreement did bear a consequential effect upon the plea negotiations, both cases having been based on the same set of facts. 192.Third, and connected to the foregoing first and second findings, conclusions and holding, concerning the question of public interest raised by EACC, it is now an established principle that the Constitution and laws thereunder embody public interest and acts progressed in compatibility with the Constitution and laws thereunder are in themselves in public interest. This Plea Agreement was pursued under Article 159(2)(c) of the Constitution and section 137A(1)(b) of the CPC. It follows that if an act is progressed in compatibility with the Constitution and the laws thereunder, it cannot be deemed to have offended public interest. It follows that the mere reason that in the agreement, parties selected withdrawal as the option and granted that it's one of the lawful options available in plea bargaining, on and by itself, does not offend public interest merely because it may not be as popular as the other options. I have said herein above that the most significant component of the public interest principle is the rule of law, now recognized by Article 10(2)(a) of the Constitution, which binds all State organs, State officers, public officers and all persons whenever either applying or interpreting the Constitution or enacting, applying or interpreting any law or making or implementing public policy decisions and that it is in the general welfare of the public and it deserves not only recognition but in addition jealous protection, that laws of the land are followed. It follows that the Constitution is a reflection of the supreme public interest and its provisions must be upheld by the Courts. 193.Fourth, and also connected to the foregoing first, second and third findings, conclusions and holding, beyond assertions, it was not established or demonstrated on a preponderance of probabilities that the DPP abused his power or took a pathway that offends the interest of administration of justice. In any event, having reached a conclusion under question (a)(iii) that EACC was consulted, it was obligatory upon EACC but it failed to lay before this Court the particular factors which it tabled on the table of negotiations but unfactored in the Plea Agreement. In the circumstances, the objection by EACC remained merely a protest that it was not consulted without specific material or substance underlining the objection, for consideration by this Court in this determination. 194.Fifth and finally, considering the compelling factual basis coupled with the assorted reasons, factors, grounds and considerations in support of the pathway of withdrawal taken in the Plea Agreement, coupled with the failure to demonstrate on a preponderance of probabilities the manner and extent to which the triple test has not been surmounted by the DPP, and considering further that the terms of the civil Settlement Agreement did constitute pivotal or cornerstone factor which bear a consequential effect upon the plea negotiations, both cases having been based on the same set of facts, this Court has found difficulties to find that there was abuse of power by the DPP as to fault the pathway taken. 195.In the premise, this Court is persuaded on a preponderance of probabilities that the exercise has passed the triple test. Ultimately, this Court concludes that the Plea Agreement has surmounted the substantive legality test (which is that there’s a sound legal basis and/or justification for the Plea Agreement, upon which it can be adopted a Judgment of this Court and in particular, the agreement has surmounted the triple-conditions test of public interest, interests of administration of justice and the need to avoid abuse of the legal process). Part X: Disposition 196.Wherefore, this Court Adopts the Plea Agreement as a Judgment of this Court. It follows that all the charges are deemed withdrawn against all Accused Persons under section 137A(1)(b) of the Criminal Procedure Code. WRITTEN AND SIGNED BY:C.N. ONDIEKISENIOR PRINCIPAL MAGISTRATEDELIVERED, COUNTER-SIGNED AND DATED IN OPEN COURT AT MILIMANI ANTI-CORRUPTION COURT THIS 15TH DAY OF MAY, 2026…………….…………C.A. OKORESENIOR PRINCIPAL MAGISTRATEIn the presence of:The 1st – 18th Accused PersonsProsecution Counsel: Ms. Nora and Mr. WalusalaAdvocate for the 1st accused: Ms. MwanziaAdvocate for the 2nd accused: Mr. Ochwa & Mr. OwinoAdvocate for the 3rd accused: Mr. OwinoAdvocate for the 4th accused: Mr. ArioAdvocate for the 5th accused: Mr. OchwaAdvocate for the 6th, 7th and 12th Accused Persons: Mr. Ochwa for Mr. SaganaAdvocate for the 8th, 9th, 10th, 11th, 13th, 14th, 15th, 16th, 17th & 18th Accused Persons: Mr. MussaAdvocate for EACC: Ms. RuttoCourt Assistant: Ms. Mutave