https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/101

Republic v Paris (Criminal Case E021 of 2026) [2026] KEMC 101 (KLR) (25 May 2026) (Ruling) Neutral citation: [2026] KEMC 101 (KLR) Republic of Kenya In the Wajir Law Courts Criminal Case E021 of 2026 FX Baraka, RM May 25, 2026 Between Republic Prosecutor and Abey Yussuf Paris Accused Ruling 1.Justice shall be our shield and defender. The opposite is also true – that if we abuse justice, it will become the edge of a sword. 2.The signs and symptoms of the sword is when the prosecution becomes the defence counsel and applies to withdraw a criminal case after conviction. 3.It is worth noting that this court has been firm in rejecting such abuse of court process that at the end of the day only tarnishes Judiciary’s name. It goes without saying that the Judiciary has since been ranked the most corrupt institution. If you ask me, this ranking is oblivious of the misconception held by the public as to where Judiciary begins and ends. To the ordinary local mwananchi, all justice players are considered to be judiciary or court and when one player drops the ball, the corruption tag follows the Judiciary. 4.Whereas such applications to withdraw a matter is made by the prosecution team, the reasonable man in the said society will almost always blame the Judiciary. It is not lost to this court that media houses camped in Wajir investigating the said sporadic withdrawal of matters to the detriment of the society. 5.If the above is not enough, this case brings in a new twist where one of the accused persons claimed to have been asked to pay a bribe of Kshs. 70,000.00 for their matter to be withdrawn, the outburst happened when the accused person noticed that withdrawal will allow his co-accused off the hook and leave him behind to handle the second count where he was charged alone. So, what would a reasonable man in Wajir society think when this court allows an application for withdrawal with such a background in mind? Your guess is as good as mine. 6.This court has held the view that a crime is a wrong against society and it is the duty of the state to protect society through prosecution of offenders and any withdrawal must be in public interest, the interest of administration of justice and the need to prevent and avoid abuse of the legal process – Article 157(11) of the Constitution of Kenya. It should therefore be settled that the prosecution office holds a public office and provides prosecutorial assistance to the State in administering criminal justice. Withdrawal can therefore not be whimsical, capricious and unpredictable. The prosecution must be the gate keeper of the authority granted to prosecute and such power as granted under Article 157(6) must support the state to tame crime and increase public confidence otherwise we shall be inviting anarchy. 7.It goes without saying that such prosecution power must be exercised fairly, justly and impartially to the best interest of the society at large. It is in this breath that Article 157(8) of the Constitution of Kenya mandates Court to vet such powers to prosecute and discontinue a case – See Article 157(8) of the Constitution. Of course, this power to vet withdrawal is not to stifle prosecution but is applied on the grounds of public interest, sound public policy and in the interests of the administration of justice. 8.In order to ensure withdrawal of cases is not abused by the prosecution team, Kenyans in their wisdom implanted the safety measures in the Constitution as the Grundnorm. Importantly, Kenyans entrusted the court to vet and ensure such withdrawal shall serve justice not just to the complainant, but to the society at large. Question therefore, can a court of law sit pretty and supervise withdrawal of a matter where persons were convicted? Background 9.Accused persons Bishar Musa Daud and Yussuf Abey Paris were charged on 2nd April, 2026. The accused persons faced 2 counts and one alternative.Count 1 – [Both Musa and Abey] Breaking into a building and committing a felony contrary to section 306(a) of the Penal Code.Alternative 1 – [Musa Daud] – Handling stolen property Contrary to Section 322(1) as read with Section 322(2) of the Penal code. – Handling Kshs. 390,000.00.Alternative 2 – [ Abey Yussuf] - Handling stolen property Contrary to Section 322(1) as read with Section 322(2) of the Penal code. – Handling Kshs. 71,000.00.Count 2: [ Musa Daud ] - Possession of Narcotics and Psychotropic Substances contrary to Section 3(1) as read with Section 3(2) of the Narcotic and Psychotropic Substance Control Act 2022 10.To the above charges, the accused persons pleaded and court noted as follows.Count 1 – Plea of not guilty entered. Alternative 1 – plea of guilty entered. Alternative 2 – plea of guilty entered. Count 2 – plea of not guilty entered. 11.Immediately after plea, prosecution team and the Investigating Officer made an application that the money exhibits (Kshs. 461,000.00) where accused persons had pleaded guilty be counted and handed over to complainant who was in court and intended to receive the funds. 12.Prosecution emphasised the application made by the investigating officer and reiterated that the investigating officer was unable to keep the money. Prosecution then prayed that the money be surrendered to the complainant. 13.At first, the accused persons objected, but prosecution proceeded to clarify his prayer. Prosecutor reiterated that the exhibits will no longer be needed as the accused persons had pleaded guilty to the misdemeanour of handling stolen property. Prosecutor emphasized that they will not need the money in prosecuting count 1 as money was exhibit for the alternative counts. 14.Accused persons thereafter agreed that the money can be handed over to the complainant. With this in mind, there was no doubt that if the investigating officer could not keep the Kshs. 461,000.00, this task would be a close to impossible task for court to keep the cash. 15.With the prayer to hand over the money to the complainant, it was imperative that the same be admitted as exhibit after reading of facts. In line with the guidance in Emmanuel Kogo vs Repblic [2020] eklr, and MMM V Republic Criminal Appeal E 015 of 2021 [2022] KEHC 15012. Accused persons were therefore convicted in the alternative counts. Court directed the investigating officer to take photos of the cash and count the cash and hand over the cash to the complainant. 16.In line with the Emmanuel Kogo and MMM case, court directed that sentencing shall await the outcome of the main count – Count 1. Further, in line with Section 348 of the Criminal Procedure Code, court noted that no appeal would be admitted noting that the accused persons had pleaded guilty. 17.Court thereafter fixed a date for pre-trial for count 1 and count 2. 18.On 30th April, 2026, when matter was coming up for pre-trial, prosecutor informed court that the complainant approached their office with the intention of withdrawing count 1. 19.It is this move by the prosecution that rattled 1st accused Mr. Bishar. When his time to respond came, he addressed court as follows:-Bishar – Abey, father to co-accused paid a bribe to prosecutor. They paid prosecutor Kshs. 70,000.00. Now they want to leave me here with the case concerning cannabis. My brother was asked to send some money, he sent the money to Abey Baris for the matter to be withdrawn. The OCS framed me with cannabis, now they want to leave me in jail and allow my co-accused to walk away. If complainant lost millions, how is he allowing a withdrawal yet he has not received the millions. I object, Abey Baris should be availed. It is my right. 20.When Bishar challenged the intention to withdraw Abey Yussuf’s count that to him meant that Abey would be released and he will remain in remand, prosecutor had a change of mind and withdrew his application seeking to withdraw count 1 under Section 204 of the Criminal Procedure Code. 21.With the corruption allegations made against the prosecution team, prosecutor effectively withdrew his application under Section 204 of CPC and sought for time for pe- trial compliance. File was placed aside to allow prosecutor to comply. 22.When the prosecutor came back for pre-trial compliance, he did not proceed further, he recused himself and asked for time to avail another prosecution counsel. 23.Court directed that Mr. Bishar reports the corruption issue to the police. Court too directed the investigating officer to follow up the matter and assist Bishar to have the matter reported and investigated. Court further directed the investigating officer to have Abey Baris’ phone investigated for court to get to the bottom of the corruption allegation. A further mention was fixed for 7th May, 2026 for pre-trial and update concerning the investigations. 24.When matter came up on 7th May 2026, Counsel had not secured the presence of another prosecutor. He however informed court that the investigating officer had a report regarding the corruption allegation. PC Nehemiah addressed court, he informed court that he had been directed to investigate the corruption allegation raised by Mr. Musa Bishar. As per the investigating officer, he escorted Mr. Bishar to the police station, on arrival at the station, Mr. Bishar declined to record a complaint about the money they were asked for by the prosecution team. He however recorded a statement saying he was seeking for courts mercy and that he does not wish to have the corruption allegation investigated!!!!! 25.Further mention was fixed for 8th May 2026. Counsel Mr. Robert Nyoro attended. He informed court that his office received a letter dated 30th April 2026 informing them that they had settled and that the Complainant is willing to withdraw the matter. Court noted that the said complainant was not in court. 26.Regarding the Kshs. 70,000.00 bribe allegation, counsel informed court that accused person recanted the allegation that he simply wanted court’s sympathy and that the allegations were baseless. 27.Counsel submitted that Mr. Said Abey is the main witness in this matter as the complainant and without him it will be difficult to prosecute the matter. That it is not in the interest of justice to prosecute this matter. 28.That based on the reasons above, counsel Mr. Nyoro made an application under Section 87(a) of Criminal Procedure Code, he equally relied in Article 157(6)(c) and Article 157(8) of the Constitution of Kenya. 29.When asked the counts he intended to withdraw, counsel submitted that he intended to withdraw count 1 and the alternative counts, that count 2 regarding cannabis shall proceed. 30.To respond to the application, Yussuf agreed that the matter should be withdrawn. On the other hand, Bishar submitted that if the complainant is not coming to court then he should be forgiven and set free. 31.Counsel further informed court that they filed submissions dated 8th May, 2026 and supplementary submissions dated 18th May 2026 and that they wish to rely on the said submissions. 32.On perusal of the submissions, it was clear to court that several High Court decisions and all Court of Appeal [ cited in the submissions and supplementary] decisions were fabricated albeit to hoodwink court to go one direction. Court requested to be supplied with the authorities relied upon. Prosecution Counsel Mr. Robert Nyoro confirmed that the he wrote the submissions and that it was true the authorities do not exist. Counsel proceeded to amend the submissions by deleting the said authorities. 33.If the above was not enough, court further noted that the case of Mwangi v Republic [ 1983] KLR 522 as relied upon by the Prosecution was misrepresented to imply that court in the case held that an actual thief cannot properly be convicted of handling the very property stole in the same transaction. Court read the Mwangi authority, the authority has nothing to do with what counsel submitted. In effect, counsel Mr. Nyoro had equally misrepresented the Mwangi case to hoodwink the court towards a perceived direction. For clarity, the Mwangi case was about retrial. Issues for Determination 34.From the foregoing, the issues for determination by this court.a.Criteria that court needs to consider in an application to withdraw under Section 87(a) of the Criminal Procedure Code.b.Whether prosecution fulfilled the criteria sufficient enough for court to exercise its discretion and allow withdrawal under Section 87(a) of the Criminal Procedure Code. 35.Court read the submissions and considered the oral presentations by parties.Criteria that court needs to consider in an application to withdraw under Section 87(a) of the Criminal Procedure Code. 36.Section 87(a) of the Criminal Procedure Code provides that:- Withdrawal from prosecution in trials before subordinate courts.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; 37.From the foregoing provisions, conditions that need to be fulfilled include:a.Prosecutor needs to convince the trial court that the matter should be withdrawn.b.The application for withdrawal should be made before judgment is pronounced in any of the matters. 38.Basically, the prosecutor needs to convince court that the matter is ripe for withdrawal and that no judgment has been entered in the matter. 39.There are numerous precedents in this matter [withdrawal under Section 87(a) of Criminal Procedure Code] and the rule of thumb remains that it is the trial court to exercise its discretion having in mind the grounds and evidence presented by the prosecution team. 40.It should be noted too that the Constitution of Kenya 2010 also guides court on this matter and this court is bound by the grundnorm. 41.Allow me to start with the words of the Chief Justice Hon Justice Koome on this issue. In the case of Republic vs Enock Wekesa and Michael B. Watah Hon. Koome insisted on the need for court to protect public interests and court to vet the application to ensure that withdrawal shall protect public interest.“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…The constitution provides that public interest, the interest of justice and abuse of the legal process be protected, this is the duty of the trial court.” 42.As per the Chief Justice, it goes without saying that the trial court MUST vet the application for withdrawal and that prosecutor must adduce sufficient reasons good enough to convince court to exercise its discretion to allow the application. Further, the Chief Justice reiterated that the trial court must be guided by the Constitution and protect public interest, the interest of justice and to prevent the abuse of legal process. She emphasized that vetting the public interest, interest of justice and to prevent abuse of legal process is the sole duty of the trial court. 43.The above position is the Constitutional guideline, the Constitution further directs in Article 157(6)(c)(8)(11).(6)The Director of Public Prosecutions shall exercise State powers of prosecution and may—(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).(8)The Director of Public Prosecutions may not discontinue a prosecution without the permission of the court.(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. 44.From the foregoing, it is settled that by precedents and Constitution of Kenya that:-a.Withdrawal is before a Judgment or conviction is entered in a matter.b.Withdrawal or discontinuation is subject to trial court’s vetting and approval.c.The Prosecution and court must 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. 45.Court considered the prosecutions submissions and note that they too relied on Article 157(6)(c), Article 157(8) and Article 157 (11) of the Constitution. Question is, did they fulfil the said requirements to the satisfaction of the trial court? 46.This court relies in a similar case Helmuth Rame v Republic [2014] KEHC 5390 (KLR) where High Court declined to allow prosecution leave to withdraw as the accused persons had been placed on their defence. In this case, High Court found that allowing withdrawal would be contrary to public interest and the interest of the administration of justice and the need to prevent and avoid abuse of legal process. Please note that in our case, prosecution is seeking to withdraw a matter after conviction. The court in Helmuth held as follows.Under Article 157 (6) (c ) of the Constitution, the Director of Public Prosecution may discontinue at any stage before judgment is delivered any criminal proceedings instituted thereby or taken over by his office… Article 157 (7). Article 157 (8) of the Constitution provides that the Director of Public Prosecutions may not discontinue prosecution without the permission of the court. It is further provided at Article 157(11)as follows,“In exercising the powers of this Article, the Director of Public Prosecutions shall have regard to the public interest, the interest of the administration of justice and the need to prevent and avoid abuse of the legal process.”The ruling refusing the withdrawal of the case at the instance of the Director of Public Prosecutions reinforces the provisions of the Constitution that the Director may not exercise those powers without the permission of the court. What this means is that the power is not absolute and the court has the final say.several factors come into play in addressing such orders. These include the fact that each case depends on its own circumstances and that the public interest underlines all such orders.“The role of a trial court is not and cannot be reduced to merely endorsing the decision of the Attorney General. A trial court has a duty to ensure that justice is done to the parties who appear before it. If it appears that the Attorney General, in exercise of its powers to enter a nolle prosecue is acting contrary to the established constitutional norms of a fair trial, a trial court is within its rights to refuse to enter nolle prosecue and refer the matter to a constitutional court for determination as to the legality of the decision by the Attorney General. A trial court cannot fold its arms and say it cannot hear an aggrieved party who is challenging the exercise of the power vested on the Attorney General by the law.”With respect I agree. That ruling was made in on 30th November, 2007 before the Constitution 2010. However, it is instructive that the power of the court is specifically reinforced in the provisions I have cited above. Any other ruling to the contrary would fly in the face of those constitutional provisions.The step taken by the Director of Public prosecutions was after the close of the prosecution case and after the trial court had found the accused has a prima facie case and put him on his defence. To withdraw the case at this stage may put into question the public interest and the interest of the administration of justice and the need to prevent and avoid abuse of legal process. I say so because, one of the reasons advanced by the Director is that the civil proceedings had exonerated the accused. 47.From the foregoing, this court is guided and follows that court must vet the application for withdrawal and that the powers to prosecute and withdraw matters is not absolute. A withdrawal is subject to court’s consensus that such withdrawal protects public interest and instil public confidence in the justice system. 48.It is now settled the public interest is wide and may vary from time to time, what then is court to consider in order to vet viability of an application to withdraw. The Indian Supreme Court case of State of Kerala v. K. Ajith, 2021 SCC Online SC 510. Seeing the blatant nature in which discretion under section 321[withdrawal] was exercised the Apex court ordered that cases could be withdrawn not only with the consent of the trial court concerned but would also need consent from the High Court. In India, to tame the abuse of application for withdrawal it was set that such withdrawal if approved by the trial court then must be vetted and confirmed by the High Court. The Supreme Court established limbs to be considered to include.a.The public prosecutor must apply his mind before filing an application.b.The grounds where withdrawal may be permitted are ‘where there is paucity of evidence’ or ‘there is no likelihood of conviction and continuation of proceedings would cause hardship’ or ‘is in public interest’ or any other ‘ground which is justified in the circumstances of the case’.c.The Public Prosecutor cannot act on the orders of the executive and has to formulate his independent opinion before filing an application for withdrawal.d.In cases where large and sensitive issues are involved, advice may be sought from the government.e.The Court will not reject the application just because of the fact that the Government has asked the Public Prosecutor to initiate a withdrawal but will consider whether the PP has applied his mind independently or not.f.The Court has the discretion to accept/reject an application. 49.The foregoing list is not exhaustive but reiterates the need for court to vet and most importantly ensure that the Prosecution applied his mind conclusively before filing an application. That the prosecution is not acting capriciously and impulsively to seek the withdrawal without considering all surrounding factors. This court has to consider the grounds and evidence therein and weigh whether it is in public interest that the matter be withdrawn. 50.Court is guided that public interest is wide and not static but basically entails the notion that an action or process or outcome widely and generally benefits the public at large (as opposed to a few or a single entity or person) and should be accepted or pursued in the spirit of equality and justice. Court is equally guided by the case of Transnet Ltd t/a Metrorail v Rail Commuter Action Group 2003. (6) SA 349 (SCA) where the South African apex court was deliberating on issue of public interest and summarized public interest to be that which benefits the public, that which promoted the general welfare of the public, that which better serves the public – See also Rail Commuter Action Group v Transnet Ltd t/a Metrorail (No 1) 2003. (5) SA 518 (C) and Asko Beleggings v Voorsitter van die Drankraad NO 1997. (2) SA 57 (NC). 51.It should equally be noted that courts have made it clear that the ‘public’ concerned need not be widely representative of the general public – it can be a smaller community within the broader national community – See CJW Marketing CC v Limpopo Provincial Liquor Board [2008] ZAGPHC 403 and Maharaj v Chairman, Liquor Board 1997. (1) SA 273 (N). 52.In this context it is also important to note that the public interest does not depend on each member of the relevant community or ‘public’ directly benefiting. This succinctly held by the High Court case of Clinical Centre (Pty) Ltd v Holdgates Motor Co (Pty) Ltd 1948. (4) SA 480 (W).A scheme is ‘in the public interest’ if it is to the general interest of the community that it should be carried out, even if it directly benefits only a section or class or portion of the community. 53.With the above in mind, this court takes judicial notice as guided by Section 59 and 60 of Evidence Act. Court notes that a day before the corruption allegation were reported to court by the accused person, the public view about the prosecution team was as follow as per the Northern Kenya X account.“Here in Wajir court two, there is a prosecutor who is very corrupt, he oppresses the people of Wajir county and the court has been become a very dirty place and no justice, we request the LSK to remove the prosecutor and judge and all court staff” 54.With the above views on what constitutes public interest, this court shall now consider the grounds relied upon by the prosecution team. 55.In our case, prosecution relied in grounds including:-a.That the complainant is no longer willing to testify.b.That the interest of Justice favours restorative resolution.c.That the prosecution no longer believes continuation of proceedings serve public interest.d.The bribery allegations were investigated and found baseless. 56.This court shall vet the grounds set out above and consider whether the Application to withdraw under Section 87(a) of the Criminal Procedure Code is merited. a. That the complainant is no longer willing to testify. 57.The first ground raised by the prosecution in seeking withdrawal is that the complainant was no longer willing to testify and that he expressly informed the prosecution that the matter has been amicably settled. That since he is the principal witness in the matter and the owner of the stolen money the case can not continue without his cooperation and testimony. The prosecution relied in the case of Republic v Mohamed Abdow Mohamed [ 2013] eklr which states that it is prosecution’s discretion to evaluate whether continued prosecution serves the interest of justice. 58.Court takes note that whereas the Mohamed case is a High Court case, Prosecution indicated that it is a Court of Appeal case, when requested to provide court with a copy of the decision, Counsel Mr. Nyoro conceded that the decision does not exists. Be as it may, Court further notes and distinguishes the case Republic v Mohamed Abdow Mohamed [ 2013] eklr as it is not comparable with facts of this case and the findings are not close to the issues as hand. In High Court Mohamed Abdow case, there was no conviction when the matter was being withdrawn. The case had not started and factors in Abdow case are distinguishable. Withdrawal due to lack of witnesses (Abdow case) is not comparable to application to withdraw after conviction. Besides Abdow case was not based on Article 157(6) (c) of the Constitution. The Musa and Abey’s case entail an application for withdrawal of the case after conviction and cannot be compared to the Abdow case. 59.It is now settled law locally and internationally that whether the complainant is willing to testify or not, application to withdraw the case cannot be made after conviction or judgment. This court is guided by the Indian Supreme Court case of N. Sankarayarayanan Nair v. P. V. Balakrishnan, AIR 1972 SC 496 where the Supreme Court held that Public Prosecutor can ask for permission to withdraw at any stage of inquiry or trial, before the pronouncement of the judgement or conviction. 60.The above position was equally the holding in the Kenyan case of Republic V Wycliffe Wandera [2013] Kehc 3741 (Klr) where the High Court held:3)The application by the prosecutor and the order of the Court would be curious because these came after a judgment had been delivered convicting accused 1. Section 87(a) of The Criminal Procedure Code provides:-“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;”It is most doubtful that these provisions can be invoked after a judgment has been pronounced. secondly the order would lead to an absurd situation of “discharging” an accused person who had just been convicted. 61.The case in Republic V Wycliffe settle the question as to whether the case can be withdrawn after judgment or conviction. The courts above settle the issue that once convicted or judgment is entered, the case with a conviction can not be withdrawn. 62.Court takes note of the submissions that the complainant is no longer willing to testify. This is not in contest as he will no longer be needed to testify as a conviction was entered and in line with the cases of Emmanuael Kogo vs Repblic [2020] eklr, and MMM V Republic Criminal Appeal E 015 of 2021 [2022] KEHC 15012, court is guided that the alternative count now has to proceed to sentencing with it in mind that Section 87(a) of the Criminal Procedure Code would discharged the accused persons on Count 1. 63.Noting that the complainant is not available to testify, this court takes note that count 1 shall be determined inline with Section 87(a) whose consequence is discharging the accused persons on Count 1. With the discharge of accused in count 1, the alternative counts are not available for withdrawal as the accused persons were convicted. 64.On ground one (complainant is no longer willing to testify) therefore, it is not disputed that the complainant is no longer willing to testify, it is settled as expressed above that witnesses are not needed in the alternative counts as both Musa and Abey were convicted in the misdemeanour of handling stolen property. Musa and Abey are discharged in Count 1 and stand convicted in the alternative counts. b. That the interest of Justice favours restorative resolution. 65.The second ground relied upon by the prosecution in making the application for withdrawal is that interest of Justice favours resolution. It was prosecution’s submission that this matter concerns recovery of money. As per prosecutor, the complainant confirmed that he has been compensated. Prosecutor relied in Article 159(2)(c) of the Constitution of Kenya which provides alternative form of dispute resolution including reconciliation, mediation, arbitration and traditional dispute resolution mechanism shall be promoted. 66.Whereas Article 159(2)(c) of the Constitution is not disputed, it is this court’s finding that such alternative dispute resolution cannot lead to withdrawal of a case post judgment or conviction. At conviction stage, the best alternative dispute resolution can do is to convince the court during mitigation of the need to be lenient in sentencing. 67.Besides, whereas the prosecutor alleged that the complainant was compensated, this is not true. As per the charge sheet, Kshs. 2.4 million shillings was stolen. As per the proceedings only Kshs. 461,000.00 was paid back to the complainant. On the face of it therefore on this ground, it goes without saying that the complainant has not been compensated as there is still Kshs. 1,939,000.00 that is yet to be paid back to the complainant. 68.The Supreme Court in India settled an application on such a ground in the case of - Sheonandan Paswan v. State of Bihar, AIR 1987 SC 877 where the court held that the same evidential material relied upon during charging and framing of the charge should be used to prove that the prosecution cannot sustain the charge. Otherwise, it would shake the confidence of people in the criminal justice system and make the entire process a mockery. That if compensation is the ground for withdrawal, then the amount on the charge sheet should be the same amount relied in submitting on the issue of compensation. It would only add up that complainant is fully compensated if he was to confirm that Kshs. 2,400,000.00 was paid to him. This was never done. 69.In essence, the public is watching and it knows that Kshs 2,400,000.00 was stolen, it can not be a ground for withdrawal to say that complainant has been compensated yet he is on record saying he has only received Kshs. 461,000.00. On the face of it, allowing the application for withdrawal on this ground would be a mockery of the criminal justice system. It is not disputed that parties can attempt alternative dispute resolution as provided under Article 159(2)(c) of the Constitution, what is disputed is that in a criminal case the standard of proof expects that if complainant claimed to have lost Kshs. 2,400,000.00, an application for withdrawal claiming compensation should justify the compensation of Kshs. 2,400,000.00 in full or forfeiture of the remaining amount. 70.Be as it may, the record shows compensation to the tune of Kshs. 461,000.00. This amount was confirmed and is on record. There is no record of full compensation or forfeiture, now the prosecution claims the complainant has fully been compensated, this is not on record as the complainant has this far not attended court to confirm that he has been compensated fully. To allow withdrawal on this ground would be against the binding authority in the case of Republic Vs Peter Kibe And Others Nakuru Criminal Revision Number E001 OF 2021 where court vacated the order of withdrawal where the complainant had not confirmed the status yet the prosecutor went ahead to withdraw. The High Court held:-50.The prosecution’s submission that the applicant was present and did not object to the application is not supported by the record. There is nothing on record to show that the Victim or his counsel were present. It is not even clear whether all the accused persons were present. The reason for the application to withdraw is vague: What are these requirements that were not complied with, and by whom? In Republic vs Enock Wekesa and Michael B. Watah (2010) eKLR, observed:“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…The constitution provides that public interest, the interest of justice and abuse of the legal process be protected, this is the duty of the trial court.”…51.Applied to this case, the learned magistrate was obligated to ensure that the victim was aware of the application for the withdrawal and to get reasons.….52.This case cries out for the exercise of this court’s supervisory and revisionary powers as set out in the Constitution and the Criminal Procedure Code. The procedure followed in during the hearing of the application did not serve the interests of justice as it completely left out the victim contrary to the requirements of both the Constitution and statute. It is clearly evident that the orders given by the learned magistrate on the 15th October 2020 did not comply with the Victims Protection Act, and the Constitutional values enshrined under Article 159 and 157(11) of the Constitution. 71.As record would show, the complainant at no given time confirmed compensation of Kshs. 2,400,000.00 [ record shows only Kshs. 461,000.00 was settled], as guided by the case of Republic Vs Peter Kibe (supra), will it be in order to assume that the complainant in our case was fully compensated and that he has no claim in the Kshs. 1,939,000.00 that still remains due and payable? Clearly not. 72.On the ground of restorative resolution, this court can not assume that the complainant was fully compensated and therefore discharge the accused persons. It is on record that only Kshs. 461,000.00 was settled and recorded in court. In the absence of the complainant court cannot assume that he was paid Kshs. 1,939,000.00 or he is willing to forfeit the said amount. c. That the prosecution no longer believes continuation of proceedings serve public interest. 73.On this ground, prosecution submitted that it reassessed the matter in light of the complainant’s position, the reconciliation achieved, restitution already made and the practical difficulty of prosecuting without a willing complainant. 74.As highlighted above regarding public interest, it is clear to this court that the grounds relied upon by prosecution are not public interest grounds. 75.The High Court in the case of Ratieda Artisinal Miners Savings and Credit Co- operative Society Limited & 2 others v Amlight Resources Company Limited & 8 others; National Environmental Management Authority & 3 others (Interested Parties) (Environment and Land Petition 1 & 2 of 2024 (Consolidated)) [2026] KEELC 1676 (KLR) (17 March 2026) (Judgment) defined public interest as follows:-16.It is my understanding that this is a public interest litigation in a bid to protect the public from environmental pollution and degradation through illegal mining activities. In the Matemu case (supra) the judges stated that [...] It is clear to us that the application herein and the Petition of Appeal which the 1st respondent had filed earlier, involve constitutional questions which are public in nature. “Public interest” is defined in Black’s Law Dictionary, 9th Edition (page 1350) as:“the general welfare of the public that warrants recognition and protection” or “something in which the public as a whole has a stake, especially an interest that justifies governmental regulation”. 76.Additionally, the Supreme Court in the case of Steyn v Ruscone [2013] KESC 11 (KLR) definition of public interest as follows.41.The term “general public importance” has not been defined in the Constitution or the Supreme Court Act. Black’s Law Dictionary links “general importance” to “public interest”. It goes further to define public interest as:“…the general welfare of the public that warrants recognition and protection, something in which the public as a whole has stakes, especially that justifies Governmental regulation”. 77.As guided by the Supreme Court therefore, public interest are matters that concerns the general welfare of the public that warrant protection and which public has a stake. This court highlighted the views of the public concerning the prosecution’s officer and corruption allegations associated with that office. This court equally noted the submissions raised by Mr. Bishar Musa concerning corruption in the prosecution’s office. It goes without saying that corruption as compared with complainant’s position, corruption is the public issue. Again, it goes without saying that corruption as compared with reconciliation achieved, corruption is the public issue in question. Last but not least, corruption versus absence of the complainant, corruption remains the public issue. It therefore sums up and is this court’s finding that the issues raised by the prosecution in limb (c) are not public issues if the definition by the supreme is to guide us on the definition of public interest. 78.Is it viable for court to allow withdrawal on the grounds that it is a public interest that this matter be withdrawn? Definitely not. It goes without saying that the ordinary reasonable mwananchi is waiting with bated breath to find out whether court will allow the application to withdraw the matter yet it was published that prosecution asked for a bribe of Kshs. 70,000.00 for them to withdraw the matter. 79.In the Indian Supreme Court case of Balwant Singh v. State of Bihar IR 1977 SC 2265, court held that Prosecution has to weigh in his mind whether public justice will be advanced or retarded by the withdrawal of the prosecution. 80.Based on the Balwant’s case, will the public have confidence in court if this case is withdrawn knowing the surrounding circumstances? Will public justice be advanced if court allows withdrawal knowing well that Musa and Abey were convicted and it is contrary to law to withdraw a matter post judgment or conviction? Does the public interest favour the withdrawal or the sustaining of the legal position that once convicted the matter cannot be withdrawn? 81.On this heading therefore, this court finds that prosecutions reassessment of the matter, complainant’s position, reconciliation achieved, restitution made, difficulty in prosecution in the absence of complainant and ODPP’s mandate are not public interests sufficient to withdraw a matter after conviction. d. The bribery allegations were investigated and found baseless. 82.Prosecution finally relied on the ground that the bribery allegations were investigated and found baseless. This can not be far from the truth. 83.It is important to note that as per the court record, investigations were not carried out as Mr. Musa refused to record his complainant at the police station even though he was directed to record the complainant and have the matter investigated. It is therefore note right to say that the corruption allegation against the prosecution was independently investigated and found to be baseless. The rule of thumb in corruption matters is that corruption is a perception issue and the general members of the public holds the perception. 84.I take judicial notice that as a court I have too raised this issue severally with reference to withdrawal of matters which clearly to a reasonable man are never to the public interest but to other motives. Be as it may, court looked at Mr. Musa’s statement with it in mind that Mr. Musa made the corruption allegations in open court. 85.Notwithstanding the fact that Musa seams to retract his statement, this court is not a stranger to what he said in court when reporting the corruption allegation against the Prosecution office. Mr. Musa was particular, detailed and specific on the information given in court. Mr Musa gave names, the meetings, the amount, how they raised the amount, who received the amount etc. It is not lost to this court that as indicated in his statement – “I am not ready to make any official report to the police as directed by court, I was out of my mind when I made the allegation” “I do not want the DCI Wajir West to investigate the allegation” 86.As highlighted above, corruption is a perception question, retracted or not, this court was present when Mr. Musa reported the corruption allegation in court. Besides, court takes note that the members of the public were present and they heard Mr. Musa loud and clear giving full information. 87.Notwithstanding the retraction of the corruption allegation, what will a reasonable man think if this court allows the application to withdraw a matter after conviction noting that the perception is that Kshs. 70,000.00 was paid to the prosecution for the withdrawal to take place? Judiciary has time and again reiterated that judiciary is a corruption free zone and we shall not be dragged into such shortcuts. We are bound by the facts and the law. 88.This court is guided by the case of Abdul Wahab K. v. State of Kerala (2018) 18 SCC 448 where the Indian Supreme Court held that “the Public Prosecutor is expected to act as an independent person. It is his duty to assist the Court and has to apply his mind before withdrawal so as to ensure that social justice is achieved. 89.Having the background of the matter and the grounds relied upon by the prosecutor Mr. Robert Nyoro, will withdrawal of the matters ensure that social justice is achieved? Will the ordinary reasonable man knowing the circumstances of this case consider withdrawal as a measure of social justice? 90.In the case of Rahul Agarwal v. Rakesh Jain (2005) 2 SCC 377 the Indian Supreme Court held that withdrawal application can only be permitted if the interest of justice demands so. 91.Knowing the circumstances of the case, will it be in the interest of justice for court to allow the application for withdrawal? Whether prosecution fulfilled the criteria sufficient enough for court to exercise its discretion and allow withdrawal under Section 87(a) of the Criminal Procedure Code. 92.Based on the above analysis, has the prosecution fulfilled the criteria sufficiently enough for court to exercise its discretion and allow withdrawal under Section 87(a) of the Criminal Procedure Code? 93.Notwithstanding the prosecutorial powers constitutionally bestowed upon the Director of Public Prosecution, this is not a carte blanche, the power to prosecute and withdraw are subject to law as guided by the Constitution. This far, the Constitution of Kenya has been clear that courts MUST vet such application for withdrawal and ensure that public interest, the interests of the administration of justice and the need to prevent and avoid abuse of the legal process. 94.This is now settled law and precedent as highlighted in the case of Republic Vs Peter Kibe And Others Nakuru Criminal Revision Number E001 Of 2021 where the High Court held.36.Under Article 157(6)(c) of the Constitution, the Director of Public Prosecutions may, discontinue at any stage before judgment is delivered any criminal proceedings instituted by or taken over by him, Sub-Article 8 is explicit that: "The Director of Public Prosecutions may not discontinue a prosecution without the permission of the court."37.So the power to discontinue, at any stage of the prosecution, with the permission of the court is provided by the Constitution. The requirement for permission by the court here is similar to the requirement by Section 87 (a) which speaks of the consent of the court. The in itself pre supposes that the court will need to be satisfied that there is good reason to allow the withdrawal.38.This guard against the whimsical application of this power is to be found at Article 157(11) of the Constitution provides that: "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."39.As for the subordinate courts obligation when dealing with such an application from the ODPP, the bar is set by the Constitution. The court would have to be satisfied that power is not being exercised outside its boundaries: public interest, interests of justice, prevention of abuse of the legal process. There is exercise of discretion by the court which discretion must be exercised judiciously taking into account the facts of each case and in particular whether the application abides by these provisions. 95.From the foregoing authority, this court is not tasked with the duty to simply rubberstamp application for withdrawal. The court must be satisfied that Prosecution’s power is not being exercised outside its boundaries. By law the boundaries are set to include public interest, interests of justice, prevention of abuse of the legal process. Court is further tasked to exercise its discretion judiciously and taking into account the facts of each case and in particular whether the application abides by these provisions. 96.I note that accused persons did not oppose the application to withdraw. Court takes note the submission that the complainant is not willing to testify. As highlighted above, availability of witness was the only viable ground with respect to count 1. Court is aware that if the complainant fails to attend court to testify then prosecution may be an academic exercise. It is on this ground alone that court allows withdrawal of Count 1. With the guidance from Emmanuel Kogo vs Repblic [2020] eklr, and MMM V Republic Criminal Appeal E 015 of 2021 [2022] KEHC 15012, convicted persons shall proceed for mitigation in the alternative counts and pre-trial in count 2. Final disposition 97.With the above in mind, court Rules as follows.a.On ground one (complainant is no longer willing to testify) therefore, it is not disputed that the complainant is no longer willing to testify, it is settled as expressed above that witnesses are not needed in the alternative counts as both Musa and Abey were convicted in the misdemeanour of handling stolen property. Musa and Abey are discharged in Count 1 and stand convicted in the alternative counts.b.On the ground of restorative resolution, this court cannot assume that the complainant was fully compensated and therefore discharge the accused persons. It is on record that only Kshs. 461,000.00 was settled and recorded in court. In the absence of the complainant court cannot assume that he was paid Kshs. 1,939,000.00 or he is willing to forfeit the said amount.c.this court finds that prosecutions reassessment of the matter, complainant’s position, reconciliation achieved, restitution made, difficulty in prosecution in the absence of complainant and ODPP’s mandate are not public interests sufficient to withdraw a matter after conviction.d.In the end, court allows withdrawal of Count 1. With the guidance from Emmanuel Kogo vs Repblic [2020] eklr, and MMM V Republic Criminal Appeal E 015 of 2021 [2022] KEHC 15012, convicted persons shall proceed for mitigation in the alternative counts and pre-trial in count 2. 98.It is so ordered. Thus, says the law. RULING DELIVERED ON 25TH OF MAY, 2026. BY HON. BARAKA XAVIER FRANCIS.In the presence of.Prosecutor – Mr. Robert Nyoro. Accused person and Convicted persons.Court Assistants Mr. Ali and Mrs. Amina.SIGNED BY:HON. BARAKA XAVIER FRANCISHON. BARAKA XAVIER FRANCISHABASWEIN MOBILE COURT UNDER WAJIR LAW COURTSMAGISTRAT COURTDATE: 2026-05-25 17:37:09