https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/13017

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT NAIROBI** **CRIMINAL APPEALS DIVISION** **CRIMINAL REVISION CASE NO. E.117 OF 2025** **REPUBLIC------------------------------------------------------------- APPLICANT** **VERSUS** **JAHESH KUMAR KOTECHA PRABHUDAS------------------------------------------------------------------------------------------1ST ACCUSED/RESPONDENT** **M/S MIDLAND HAULIERS LIMITED-----------------------------------------------------------------------------------------------2ND ACCUSED/RESPONDENT** **RULING** **INTRODUCTION** 1. By way of a Notice of Motion dated 13th August 2025 expressed to be brought under Articles 50, 157, 165 of the Constitution Of Kenya as read together with Section, 87(A), 362 and 364 Of The Criminal Procedure Code the applicant sought to challenge the decision of the learned Hon Magistrate declining to allow the withdrawal of Milimani MCCR CRIMINAL CASE NO. E632 OF 2024 Republic Vs Super Hakika limited and Kotecha Jayesh Kumar Guarav & 2 others. 2. The applicant in particular sought the following orders;- **i). THAT this Application herein be certified urgent and be heard in the first instance and the Honourable court be pleased to grant an order of stay of the proceedings in Milimani MCCR E632 of 2021 Republic Vs Super Hakika limited and Kotecha Jayeshkumar Guarav & 2 others. (spent)** **ii). THAT this Honourable court be pleased to call for and examine the record of the proceedings in Milimani MCCR CRIMINAL CASE NO. E632 OF 2024 Republic Vs Super Hakika limited and Kotecha Jayesh kumar Guarav & 2 others to satisfy itself as to the correctness, legality or propriety of the Ruling delivered by Hon. Carolyne Nyaguthi Mugo(PM) on the 29th day of July, 2025.** **iii). THAT this Honourable Court be pleased to review, vary, reverse, set aside and/or quash the decision of the Trial Magistrate which dismissed the Applicant's Application to withdraw the charges against the Respondents.** **iv). THAT upon setting aside the said ruling dismissing the Applicant's Application to withdraw the charges against the Respondents in MCCR CRIMINAL CASE NO. E632 OF 2024 Republic Vs Super Hakika Limited and Kotecha Jayesh Kumar Guarav & 2 others the said case be deemed as withdrawn under Section 87(a) of the Criminal Procedure Code** **v). Any further orders this Honourable Court may deem fit to grant.** 1. The application was premised on the following grounds;- **a).** **THAT** on the 31st July 2024, the Respondents herein were charged with various offenses, inter alia of conspiracy to defraud and fraudulent disposition of mortgaged goods, whereof the Respondents pleaded not guilty and the matter was yet to proceed for hearing as no witnesses testified. **b). THAT** at the time of deciding to charge it had not been brought to the attention of the DPP of the existence of two petitions in the High Court for insolvency, being High Court Petitions E012 of 2019 and E008 of 2019, where the issue for determination was the property, which was the subject of investigation in this matter. **c).** **THAT** the trial magistrate gravely erred in law and fact by failing to appreciate that it is the mandate of the DPP to independently review a case by applying the evidential and the public interest test through the process of objective assessment in totality of the evidence both in favour for or against the accused, and satisfy himself that it establishes or maintains a realistic prospect of conviction. **d. THAT** the trial magistrate further misconstrued the law and facts and thereby failed to appreciate that it is not in the public interest or in the interest of administration of justice to allow the criminal justice process to be used as a pawn in civil disputes and that it is unconscionable and a travesty of justice for the criminal trial to be involved in the settlement of what is purely civil dispute already being litigated upon in court. **e. THAT** the Respondent wrote a letter to the DPP drawing his attention to the aforesaid two Petitions and requesting for review of the decision to charge. **f).** **THAT** the DPP in exercise of his constitutional powers and statutory authority granted under section 5(4)(e) of the ODPP Act undertook a thorough review of the evidence on record vis-à-vis the new information and documents which were made available by the Respondents and established that the dispute between the parties was civil and the best forum to determine the issues concerning the property which were the subject of investigation by the police was in the two insolvency petitions. **f. THAT** the DPP took into account the interest of justice, public interest and fair administration of justice, and the need to prevent abuse of the legal process, sought to have the charges against the Respondents withdrawn under section 87(a) of the Criminal Procedure Code. **g. THAT** Article 157(6) of the Constitution and section 5(4)(e) of the ODPP Act gives powers to the DPP to review a case and may discontinue at any stage before judgment is delivered, any criminal proceedings instituted by the DPP or taken over. **h. THAT** under the National Prosecution Policy the DPP can only proceed to charge and prosecute a case which meets the evidential test and the public interest test, and it is the mandate of DPP to ensure that if a matter does not meet the threshold of either of the two tests that the same be discontinued and that the said decision of the DPP is made without the influence or control of any authority or any person, not even the complainant nor the Court. **i. THAT** it was on that premise that the DPP established that prosecution of the Respondents would not be in the public interest, as any contrary decision of the High Court in the two pending insolvency petitions would have serious ramifications on the decision of the lower court. **j). THAT** the criminal case was hinged upon the civil dispute between the parties and that the parties had, in the first instance, chosen to resolve the issues between themselves through the insolvency petitions. **k. THAT** the Applicant is gravely prejudiced by the ruling delivered on the 29th July, 2025, as the same was made in wrongful exercise of the court's discretion. **1. THAT** in usurpation of the Applicant's mandate under Article 157(6) of the Constitution, the Honorable Trial Magistrate concluded that the reasons advanced by the Applicant were not sufficient **m. THAT** indeed section 193A of the Criminal Procedure Code provides for concurrent criminal and civil proceedings; however, if the DPP establishes that the criminal proceedings would not be in the public interest or would amount to abuse and misuse of criminal process, then the criminal proceedings must be halted. **n. THAT** jurisprudence shows that the standard of review of the discretion of DPP (the Applicant) to prosecute or not to prosecute is high, and courts can only interfere with the exercise of discretion sparingly. **0. THAT** the constitutional provision in Article 157(10) of the Constitution ensures that the DPP has complete independence in his decision-making process, which is vital to protect the integrity of the criminal justice system because it guarantees that any decision to prosecute a person is made free of any external influences. **p. THAT** it is in the interest of justice that the proceedings in MILIMANI MCCR E632 of 2023 be stayed pending the hearing and determination of this Application. **q. THAT** it is in the interest of justice that this Honorable Court be pleased to review, vary, reverse, and/or alter the Ruling dismissing the Applicant's Application to withdraw the charges against the Respondents in MCCR CRIMINAL CASE NO. E632 OF 2024. 1. The application was further supported by an affidavit sworn by James **Omondi Opundo,** an Advocate of the High Court of Kenya and Prosecution Counsel in the Office of the Director of Public Prosecutions (ODPP), who deposed that he was duly authorized to act in the matter and fully conversant with the facts of the matter. 2. The deponent averred that on **31st July 2024,** the Respondents were charged with various offences, including **conspiracy to defraud** and **fraudulent disposition of mortgaged goods,** to which they pleaded not guilty. 3. He deposed that the criminal case had not proceeded to hearing as no witnesses had testified by the time the prosecution applied to withdraw the matter. 4. He further averred that, at the time the decision to charge the Director of Public Prosecutions was unaware of the existence of **High Court Insolvency Petitions E012 of 2019 and E008 of 2019,** in which the property forming the subject of the criminal investigations was already directly in issue. A copy of the charge sheet is annexed and marked **“OJ-1.”** 5. The deponent further stated that the Respondents subsequently wrote to the DPP requesting a review of the decision to prosecute after bringing the existence of the two insolvency petitions to the DPP’s attention. Pursuant to the constitutional mandate conferred under **Article 157 of the Constitution** and the statutory powers under **Section 5(4)(e) of the Office of the Director of Public Prosecutions Act**. 6. According to Mr Omondi the DPP undertook a comprehensive review of the evidence together with the additional information and documents supplied by the Respondents. 7. Upon review, the DPP concluded that the dispute between the parties was essentially civil in nature and that the most appropriate forum for determining the issues relating to the disputed property was the two pending insolvency petitions before the High Court. 8. The deponent averred that, having considered the interests of justice, public interest, the fair administration of justice, and the need to prevent abuse of the legal process, the DPP sought to withdraw the charges against the Respondents pursuant to **Section 87(a) of the Criminal Procedure Code**. 9. The deponent deposed that the trial magistrate erred both in law and in fact by failing to appreciate the DPP’s constitutional mandate to independently review criminal cases through the application of both the evidential test and the public interest test, and to determine objectively whether there existed a realistic prospect of conviction. The impugned ruling of the trial court is annexed and marked **“OJ-2.”** 10. The deponent further posited that the trial magistrate misconstrued both the law and the facts by failing to recognize that it is contrary to the public interest and the proper administration of justice for the criminal justice system to be used as a means of advancing or settling disputes that are fundamentally civil in nature, particularly where such disputes are already pending before a competent civil court. 11. He went further to state that allowing the criminal proceedings to continue in those circumstances would amount to an abuse of the criminal process and a miscarriage of justice. 12. Counsel for the applicant maintained that the DPP properly exercised his discretion by seeking withdrawal of the charges under **Section 87(a) of the Criminal Procedure Code.** 13. The deponent further averred that **Article 157(6) of the Constitution** together with **Section 5(4)(e) of the Office of the Director of Public Prosecutions Act** expressly empower the DPP to review criminal proceedings and discontinue any prosecution instituted or taken over by the DPP at any stage before judgment is delivered. 14. He further deposed that, under the **National Prosecution Policy**, the DPP is only permitted to prosecute matters that satisfy both the evidential test and the public interest test. 15. Counsel further deposed that the constitutional and statutory mandate of the DPP is exercised independently, without direction, influence or control from any person or authority, including the complainant or the court, and that any matter failing either test ought to be discontinued. 16. The deponent further contended that, based upon the foregoing constitutional and policy considerations, the DPP concluded that continuing the prosecution of the Respondents would not serve the public interest, particularly because any determination made by the High Court in the pending insolvency proceedings could substantially affect or contradict the outcome of the criminal proceedings before the subordinate court. 17. The deponent further stated that the criminal proceedings were entirely founded upon a civil dispute between the parties, who had already elected to resolve their dispute through insolvency proceedings instituted more than five years prior to the commencement of the criminal prosecution. 18. The deponent avers that the Applicant has suffered substantial prejudice arising from the ruling delivered on **29th July 2025,** contending that the learned trial magistrate improperly exercised her judicial discretion by declining the DPP’s application to withdraw the charges. 19. He further contended that the trial magistrate unlawfully usurped the constitutional powers of the DPP under **Article 157(6) of the Constitution** by finding that the reasons advanced for withdrawal were insufficient despite there being no evidence contradicting or undermining the DPP’s decision. 20. The affidavit acknowledges that **Section 193A of the Criminal Procedure Code** permits the concurrent existence of civil and criminal proceedings. Nevertheless, the deponent maintained that where the DPP determines that criminal proceedings are no longer in the public interest or amount to an abuse of the criminal justice system, such proceedings ought to be discontinued. 21. The deponent further stated that the subordinate court failed to appreciate that **Articles 157(6), (7), (8), (10) and (11) of the Constitution** that vest the DPP with exclusive authority to institute, undertake, continue, take over, and discontinue criminal prosecutions on behalf of the State. 22. It was further contended that the learned magistrate misconstrued her role under **Section 87(a) of the Criminal Procedure Code** by adopting an unduly restrictive interpretation of the provision instead of recognizing that the court’s function was primarily facilitative where the DPP had lawfully exercised his constitutional discretion. 23. The deponent maintained that there was no evidence before the trial court demonstrating that the DPP’s decision to discontinue the prosecution was arbitrary, capricious, whimsical, or unsupported by the facts and the law. 24. The deponent further averred that the trial court ought not to have interfered with the exercise of the DPP’s constitutional and statutory mandate, but instead ought to have recognized that prosecutorial discretion is exercised under the authority of the Constitution and relevant legislation. 25. The deponent further explains that **Section 87(a) of the Criminal Procedure Code** is an enabling provision permitting the public prosecutor, with the consent of the court, to withdraw charges at any stage before judgment. 26. The deponent averred that it was in the interests of justice for the High Court to determine the issues raised in the application and provide authoritative guidance to subordinate courts on the proper interpretation and application of **Section 87(a) of the Criminal Procedure Code**. **APPLICANT’S SUBMISSIONS** 1. **In support of the application the applicant submitted that** Respondents were charged with conspiracy to defraud contrary to section 317 of the Penal Code, fraudulent disposition of mortgaged goods contrary to section 291 as read with section 36 of the Penal Code, performing a management function in a company under administration without consent of the administrator contrary to sections 581(1) and 581(3) of the Insolvency Act, and failure to submit a statement of company affairs contrary to section 565(4) of the Penal Code. 2. On 11th June 2025, the prosecution applied under Section 87(a) of the Criminal Procedure Code to withdraw the charges, on grounds that two pending insolvency petitions being Petition Nos. E012 of 2019 and E008 of 2019 deal with the same issues underlying the charges, and that upon review the matter it appeared to be more of a civil nature rather than criminal redress. 3. According to the applicant the trial magistrate dismissed the application, holding that the prosecution had failed to demonstrate that the withdrawal was made in the public interest, in the interest of the administration of justice, or to prevent abuse of legal process. 4. Further, that the complainant maintained there was sufficient evidence of criminal culpability with witnesses ready to testify; and that the prosecution was thereby abusing its powers. 5. The applicant thus set out four issues for determination: **(1)** the scope and extent of the High Court's revisionary jurisdiction; **(2)** the constitutional and statutory mandate of the DPP in instituting, reviewing, and terminating criminal proceedings; **(3)** the principles guiding a trial court's determination of a withdrawal application; and **(4)** whether the trial court's orders were correct, legal, and proper. **II. ISSUE ONE: SCOPE OF THE HIGH COURT'S REVISIONARY JURISDICTION** 1. The Applicant relied on **Article 165(6) and (7) of the Constitution**, which provides: "(6) The High Court has supervisory jurisdiction over the subordinate courts and over any person, body or authority exercising a judicial or quasi-judicial function, but over a superior court. **(7)** For the purposes of clause (6), the High Court may call for the record of any proceedings before any subordinate court or person, body or authority referred to in clause (6), and may make any order or give any direction it considers appropriate to ensure the fair administration of justice." 1. **The applicant further cited Section 362 of the Criminal Procedure Code** which provides: "The High Court may call and examine the record of any criminal proceedings before any subordinate court for the purpose of satisfying itself as to the correctness, legality or propriety of any finding, sentence or order recorded or passed and as to the regularity of any proceedings of any such subordinate court." 1. **He also referred the court to the provisions of Section 364(1) and (2) of the Criminal Procedure Code** provides: "In the case of a proceeding in a subordinate court the record of which has been called for or which has been reported for orders or which otherwise **comes to his knowledge, the High Court may;-** **a).** in the case of a conviction, exercise any of the powers conferred on it as a court of appeal by section 354, 357 and 358, and may enhance sentence; **b) .** In the case of any other order other than an order of acquittal alter or reverse the order. (2) No order under this section shall be made to the prejudice of an accused person unless he has had an opportunity of being heard either personally or by an advocate in his own defence." 1. Counsel cited the case of **Joseph Nduvi Mbuvi v Republic [2019] eKLR**, in which the court held: "In my considered view, the object of the revisional jurisdiction of the High Court is to enable the high Court in appropriate cases, whether during the pendency of the proceedings in the subordinate court or at the conclusion of the proceedings to correct manifest irregularities or illegalities and give appropriate directions on the manner in which the trial, if still ongoing, should be proceeded with. In other words, the High Court's revisionary jurisdiction includes ensuring that where the proceeding in the lower court has been legally derailed, necessary directions are given to bring the same back on track so that the trial proceeds towards its intended destination without hitches. Not only is the jurisdiction exercisable where the subordinate court has made a finding, sentence or order but goes on to state that it is also exercisable to determine the regularity of any proceedings of any such subordinate court as well." 1. The Applicant submitted therefore that this Honourable Court is possessed of the requisite jurisdiction to hear and determine the application. **III. ISSUE TWO: THE DPP'S CONSTITUTIONAL AND STATUTORY MANDATE** 1. On the DPP’s powers the applicant relied on **Article 157(6)(c) of the Constitution** which provides;- "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." 1. **Counsel went on to cite Article 157(8) of the Constitution** which further provides: "The Director of Public Prosecutions may not discontinue a prosecution without the permission of the court." 1. **The applicant also relied on 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; (b) if it is made after the accused person is called upon to make his defence, he shall be acquitted." 1. The Applicant submitted that sufficient legal basis exist for the DPP to review and withdraw criminal cases, the only caveat being the requirement of the court's permission, which obliges the DPP to furnish grounds. The determinative question is whether the trial court was furnished with sound reasons warranting withdrawal. The applicant submitted that the reasons for withdrawal were sufficient. **IV. ISSUE THREE: PRINCIPLES GOVERNING WITHDRAWAL APPLICATIONS** 1. Under this limb of submission, the applicant cited the case of **Director of Public Prosecutions v Kiptoo & 6 others (Criminal Revision E1550 of 2024)**, where this court held, in guiding public prosecutors: "**I**. Although the initiative emanates from the State, the Public Prosecutor who is in charge of the case shall act independently and shall not surrender his discretion to someone else. **II**. The Public Prosecutor should apply his mind to the relevant materials made available to him and should satisfy himself that the facts warrant the exercise of his discretion to discontinue the prosecution. **III.** The Public Prosecutor should act fairly uninfluenced by any irrelevant and extraneous considerations, and in good faith in the interest of public policy and justice but not to thwart or stifle the process of law. **IV**. The Public Prosecutor must aver in his application that he is acting in good faith satisfied on consideration of all relevant material that his withdrawal from the prosecution is in the public interest and it will not stifle or thwart the process of law or cause injustice, and state briefly in the application or in an affidavit annexed to that application that the material has been considered for withdrawal; the considerations above if well taken into consideration by public prosecutors would bring about predictability and consistency in prosecutorial decision making to demystify the question of withdrawal of cases in Kenya." The same authority, guiding trial courts, held: "101. On the other hand, the trial courts should be guided by the following considerations in determining an application for withdrawal by the public prosecutor;- a. The opinion of the Court is no doubt supervisory but it should satisfy itself that the material perused by the Public Prosecutor should reasonably lead to the conclusion that the withdrawal of the Public Prosecutor will serve the public interest. b. In the process, the Court is not reappreciating the grounds, which led the Public Prosecutor to file an application for withdrawal. c. Both the Court as well as the Public Prosecutor are duty bound to protect the administration of criminal justice against the possible abuse or misuse of law by the executive. d. The Court cannot lightly interfere with the judgment of the Public Prosecutor unless it comes to the conclusion that he has not applied his mind as a free agent uninfluenced by irrelevant and extraneous considerations or that his decision is not bona fide. e. It is not for the Court to assess the evidence to discover whether the case would end in conviction or acquittal. All that the Court has to see is whether the application is made in good faith in the interest of public policy and justice and not to thwart or stifle the process of law. f. The Court has to satisfy itself that the executive function of the Public Prosecutor has not been improperly exercised or that it is not an attempt to interfere with the normal course of justice for illegitimate reasons or purposes. g. The consent shall not be given lightly on the mere application of the Public Prosecutor without careful and proper scrutiny of the grounds on which the application for consent is made." (Citing Public Interest Litigation by Justice P.S Narayana, Former Judge, High Court of Andhra Pradesh, and P. Jagadish Chandra Prasad, Advocate, High Court of Andhra Pradesh and High Court of Telangana, Foreword by Hon'ble Dr. Justice Motilal B. Naik, 6th Edition, pages 327–328.) 1. Building on this, the Applicant submitted that a trial court, in determining a withdrawal application, must consider whether the prosecution exercised its discretion independently and as a free agent, free of irrelevant or extraneous influence; whether the decision is bona fide and made in good faith; whether it is free of malice or improper purpose; whether it advances public interest and public policy; and whether it avoids abuse of court process. 2. The Applicant further submitted that, by virtue of Article 157 vesting independent constitutional mandate in the DPP, courts are obligated to accord due deference to prosecutorial discretion, and may only interfere upon clear demonstration — through cogent reasoning, not bare or conclusory statements — that the discretion contravenes Article 157(11). **V. ISSUE FOUR: WHETHER THE TRIAL COURT'S ORDERS WERE CORRECT, LEGAL, AND PROPER** 1. The applicant in dealing with this aspect of the trial court’s decision cited the case of **Prosecutor v Stephen Lesinko [2018] eKLR**, where Nyakundi J outlined the principles guiding examination of issues under Section 362 of the Criminal Procedure Code: "1. the decision is grossly erroneous; 2. Where there is no compliance with the provisions of the law; 3. Where the finding of fact affecting the decision is not based on evidence or it is result of misreading or non-reading of evidence on record; 4. Where the material evidence on the parties is not considered; 5. Where the judicial discretion is exercised arbitrarily or perversely if the lower Court ignores facts and tries the accused of lesser offence." 1. The applicant maintained that the decision by the trial court in rejecting the withdrawal application did not meet the propriety and legality test. 2. The applicant also cited **Mohit v The Director of Public Prosecutions of Mauritius [2006] UKPC 20 (24 April 2006)**, where the Privy Council, considering reviewability of a DPP's decision to discontinue a prosecution, held: "It may be accepted, however, that a purported exercise of power would be reviewable if it were made: i. In excess of the DPP's constitutional or statutory grants of power— such as an attempt to institute proceedings in a court established by a disciplinary law (see s 96(4)(a). ii. When, contrary to the provisions of the Constitution, the DPP could be shown to have acted under the direction or control of another person or authority and to have failed to exercise his or her own independent discretion— if the DPP were to act upon a political instruction the decision could be amenable to review. iii. In bad faith, for example, dishonesty. An example would arise if a prosecution were commenced or discontinued in consideration of the payment of a bribe. iv. In abuse of the process of the court in which it was instituted, although the proper forum for review of that action would ordinarily be the court involved. v. Where the DPP has fettered his or her discretion by a rigid policy— eg one that precludes prosecution of a specific class of offences." 1. In **Republic v Njoroge & another (Criminal Appeal E002 of 2022)**, the court held: "So, what do I make of this? Section 193A of the Criminal Procedure Code is specific on stay of criminal proceedings to give way to civil proceedings. It is emphatic, that criminal proceedings are not to be stayed, prohibited or delayed because of pending civil proceedings. There is no provision which says the same about civil proceedings, prohibiting stay of civil proceedings to give way to criminal proceedings. I do not read section 193A as saying that civil and criminal proceedings, on the same facts or same issues, can or should run concurrently. I understand it to be stating that where it happens that there are concurrent civil and criminal proceedings, then criminal proceedings should not be stayed because of the pending civil proceedings. 9. To my mind, section 193A bars stay of criminal proceedings, and there is an implicit suggestion that in the event of concurrent civil and criminal proceedings, it should be the civil proceedings that ought to give way. That would be logical, given that the heavier burden of proof is in criminal proceedings. There is more rigor in criminal proceedings, as a result, and the outcome of criminal proceedings should carry more weight. 10. Consequently, there is absolutely nothing wrong, with having civil proceedings stayed to await determination of pending criminal proceedings. In the instant case, the subject matter of the criminal proceedings and the civil proceedings is the same, the moneys that were released to the complainant. It would embarrass the system should the outcome of the civil proceedings be inconsistent with that of the criminal process. It would only be logical to let one cause be determined first, to avoid such an eventuality. Furthermore, allowing both causes to proceed would ultimately waste judicial resources, in the incidence of contrary opinions and outcomes." 1. In **Otieno & 2 others v Republic (Criminal Revision E008 of 2023) [2023] KEHC 19829 (KLR) (6 July 2023)**, the court held: "26. Whereas, it has not been demonstrated how the rights of the complainant herein to participate in the criminal trial have been curtailed, it is also the considered view of this court, that such rights of the complainant must be read and be considered alongside those of the accused, and the general constitutional powers and authority of the DPP under article 157 as seen above. Particularly, the independence of the Office of Public Prosecution (sub – article 10), the power to discontinue criminal cases (sub – article 8), which powers can only be limited if the DPP falls short of meeting the parameters as set out under sub-article 11 (also seen above). 27. It is also worth considering that the withdrawal sought by the prosecution was made under section 87(a) of the Criminal Procedure Code. It was made before the close of the prosecution's case. The net effect is that the withdrawal would at best have led to the discharge of the accused. In that event, the accused could still (after final investigations) be charged afresh, thereby giving the complainants a right to be heard and to fully and actively participate in the trial. 28. Considering the above circumstances of this case, I am not convinced that the action of the DPP of applying to withdraw the case against the accused under section 87(a) of the Criminal Procedure Code was not in public interest, nor that it was not in the interest of administration of justice. I am equally not convinced that the action of the DPP was meant to abuse the legal process. Had the honorable trial magistrate considered carefully the circumstances of this case, no doubt, the court would have arrived at a different finding and allowed the prosecution application." 1. The Applicant submitted that the prosecution's withdrawal was grounded in the existence of two pending petitions (E012 of 2019 and E008 of 2019) canvassing the same issues, negating criminal culpability pending their determination. The Trial Magistrate failed to evaluate those reasons, instead dismissing the application on grounds that the victim was uninformed of the withdrawal decision and that the complainant maintained sufficient evidence existed — findings the Applicant contends were made without stated reasoning for the conclusion that the DPP's powers and court process had been abused. 2. The Applicant further submitted the trial court erred in failing to appreciate that the criminal proceedings are intrinsically intertwined with the pending civil petitions, such that concurrent proceedings risk conflicting determinations and waste of judicial resources. 3. It was submitted that withdrawal under Section 87(a) does not operate as an acquittal and does not bar reinstitution of charges, such that the complainant suffers no prejudice, as charges may be reinstated upon conclusion of the civil proceedings. 4. The Applicant additionally submitted that the Trial Magistrate misdirected herself by relying on the complainant's submissions regarding sufficiency of evidence without independently evaluating the record, thereby adopting the complainant's position without judicial scrutiny, disregarding the presumption of innocence, and undermining the constitutional independence of the DPP. 5. The Applicant concluded by submitting that the impugned ruling was erroneous in law, improper and untenable in principle, having failed to accord due regard to the DPP's constitutional mandate and independence, misapprehended applicable legal standards, and occasioned a miscarriage of justice. 6. The Applicant urged the Court to set aside the impugned ruling in its entirety and substitute it with an order allowing the Prosecution's application for withdrawal of charges under Section 87(a) of the Criminal Procedure Code, in the interests of justice, judicial propriety, and the proper administration of criminal proceedings. **RESPONDENTS' SUBMISSIONS IN SUPPORT OF THE APPLICATION** **THE REVISIONARY JURISDICTION OF THIS COURT** 1. The Respondents fully associated themselves with the Applicant's exposition of the law under Article 165(6) and (7) of the Constitution and Sections 362 and 364 of the Criminal Procedure Code. 2. The respondents submitted that;- (a) The subordinate court's ruling was illegal, improper, and irregular; (b) The learned trial magistrate misdirected herself on the applicable legal principles; (c) This Court is properly seized of jurisdiction to intervene and correct the error. 3. The Respondents reiterated the holding in **Joseph Nduvi Mbuvi v Republic [2019] eKLR** that revisionary jurisdiction exists to correct manifest illegality and procedural impropriety. **THE CONSTITUTIONAL MANDATE OF THE DPP** 1. The Respondents supported the Applicant's reliance on Article 157 of the Constitution and submitted that: 2. The power to institute, review, and discontinue criminal proceedings lies squarely with the Director of Public Prosecutions; 3. The trial court's role is supervisory, not substitutive; 4. The learned magistrate overstepped her mandate by effectively substituting her opinion for that of the DPP. 5. The Respondents submitted that the discretion of the DPP can only be interfered with where it is shown that it was exercised: **(a)** In bad faith; **(b)** For an improper purpose; **(c)** Contrary to public interest or administration of justice. 1. According to the respondents no such evidence was placed before the trial court. **WITHDRAWAL UNDER SECTION 87(a) OF THE CRIMINAL PROCEDURE CODE** 1. The Respondents submitted that: (i) The intended withdrawal was sought before the close of the prosecution's case; (ii) The legal effect would only be a discharge, not an acquittal; (iii) There would be no prejudice whatsoever to the complainant, as proceedings could be reinstated. 2. The Respondents associated themselves with the authorities cited by the Applicant, including **Director of Public Prosecutions v Kiptoo & 6 Others** and **Otieno & 2 Others v Republic [2023] KEHC 19829 (KLR)**, which affirm that courts should not lightly interfere with prosecutorial discretion where exercised properly. **ERROR BY THE TRIAL COURT** 1. The Respondents submitted that the trial court fell into grave error in the following respects: **(a) Failure to Appreciate the Nature of the Dispute** The court failed to appreciate that the dispute was predominantly civil in nature, and is the subject of pending insolvency petitions. **(b) Improper Reliance on the Complainant's Position** The learned magistrate improperly relied on the complainant's assertions instead of: (i) Independently evaluating the prosecution's reasons; (ii) Upholding the constitutional role of the DPP. **(c) Failure to Give Reasons;-** according to the respondents the court failed to give cogent reasons demonstrating: (i) How the DPP acted in bad faith; (ii) How public interest was undermined; (iii) How the withdrawal would amount to abuse of process. **(d) Misapprehension of Section 87(a) CPC** The court failed to appreciate that: (i) Withdrawal does not terminate the matter conclusively; (ii) It preserves the ability to reinstate charges. **CONCURRENT CIVIL AND CRIMINAL PROCEEDINGS** 1. The Respondents supportted the Applicant's argument that allowing the criminal case to proceed alongside civil proceedings would: (i) Risk conflicting findings; (ii) Lead to embarrassment of the judicial process; (iii) Result in wastage of judicial time and resources. 2. The Respondents relied on **Republic v Njoroge & Another (2022)**, where the court emphasized the need to avoid inconsistent outcomes. **ABUSE OF PROCESS AND FAIR TRIAL CONSIDERATIONS** 1. The Respondents submitted that: (i) Continuing the prosecution in the present circumstances would amount to abuse of the court process; (ii) It would undermine the Respondents' right to a fair trial under Article 50 of the Constitution; (iii) It would improperly convert a civil dispute into a criminal process. 2. The respondents urged the court to court allow the application and permit the withdrawal of the case. **VICTIM/INTERESTED PARTY'S WRITTEN SUBMISSIONS** 1. The victims through a replying affidavit sworn by Ponangipalli Venkata Ramana Rao on 11th February 2026 opposed the application. **BACKGROUND** 1. The victim submitted that sometime in 2019, the Interested Party was appointed by one of the 2nd Respondent's Creditors as the sole administrator of the 2nd Respondent. 2. In the discharge of his mandate, he made efforts to secure the assets of the 2nd Respondent. During the performance of his duties, he found that some of the 2nd Respondent's assets had been illegally and irregularly converted by the 1st Respondent despite the freezing of his powers on account of the appointment of the administrator. 3. This prompted the Interested Party to file a complaint through a letter dated 15th October 2020 with the Directorate of Criminal Investigations, who, upon investigation, recommended that the 1st and 2nd Respondents, together with others not before the court, be charged with various crimes. The 1st and 2nd Respondents, together with one Guarav Jayeshkumar (then 2nd Accused) and M/S Super Hakika Limited (then 4th Accused), were originally charged and presented to court on 3rd June 2021 when they took plea. 4. However, during the pendency of the proceedings, charges were systematically withdrawn against the then 2nd and 4th Accused persons, leaving the Interested Party without any recourse. 5. The then 2nd Accused, Mr. Guarav Jayeshkumar, who resided in the United Kingdom, even faced extradition processes, but upon his arrest, the process was halted by the withdrawal of charges against him. 6. On 11th June 2025, on the date set down for hearing, the Applicant made another application to withdraw the case against the 1st and 2nd Respondents. 7. The Application was made despite the Interested Party and other witnesses being prepared for trial by the Applicant, and despite the Interested Party having supplied the Applicant with all required documentation to effectively prosecute the case. 8. The victim submitted that the application to withdraw was ill-conceived and unjust, as it would leave the Interested Party with no recourse and would deprive him of justice. 9. The withdrawal was vehemently opposed by counsel on record, who were "ambushed," and who made oral submissions and later filed written submissions in opposition. The opposition culminated in the ruling of 29th July 2025, where the court rejected the attempt to withdraw the case against the Respondents. 10. The victim further submitted that, in clear mischief, the Applicant filed the Application and without professional courtesy, served the Interested Party's/victim’s advocates on the eve of the mention date set by this Honourable Court which would not have given the Interested Party's advocates time to file a response. 11. Additionally, the Applicant did not join the Interested Party in these proceedings and even opposed his joinder, although he is the complainant and would be impacted by the decision of this Honourable Court. 12. According to the victim, at every stage of the trial and proceedings, the Applicant has hindered the Interested Party's access to justice by not informing him of any of the decisions made in relation to the case. **ISSUES FOR DETERMINATION** 1. The following issue falls for determination: whether the Application for revision of the Ruling delivered on 29th July 2025 is merited. **ANALYSIS OF THE ISSUES** **Whether the Application for revision of the Ruling delivered on 29th July 2025 is merited** 1. The interested party submitted that the Revision Application seeking to vary or set aside the decision of the trial court vide ruling dated 29th July 2025 is frivolous, unmerited, against public interest, and an attempt to prevent the Interested Party from access to justice. 2. The interested party argued that while the Applicant is vested with the power to institute or withdraw charges, or discontinue prosecution of any person, that power ought to be exercised within reason and in accordance with **Article 157(11) of the Constitution of Kenya**, which states: "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." 1. According to the interested party the Constitution has established three fundamental principles that must be satisfied when the Office of the Director of Public Prosecutions seeks to withdraw/discontinue the prosecution of an accused person: public interest, interest of administration of justice, and the need to prevent an abuse of court process. 2. The Applicant sought to withdraw the charges on the basis that there is an ongoing civil matter and that the matter ought to be determined under civil proceedings. The interested party submitted that as the trial court rightly noted, the prosecution was well aware of the insolvency petitions relating to the 2nd Respondent. 3. The interested party went on to submit that the allegations levelled against the Respondents would not arise if there were no insolvency petitions which gave the Interested Party the power to administer the 2nd Respondent, and it is therefore absurd to claim that there is an ongoing civil dispute and that it would not be justiciable to continue with a criminal matter. 4. The victim submitted that the Criminal Procedure Code specifically provides that the existence of a civil matter shall not act as a bar to criminal prosecution. This is provided under **Section 193A of the Criminal Procedure Code**, which states: "Notwithstanding the provisions of any other written law, the fact that any matter in issue in any criminal proceedings is also directly or substantially in issue in any pending civil proceedings shall not be a ground for any stay, prohibition or delay of the criminal proceedings." 1. The Court, in **Republic v Divisional Criminal Investigation Officer, Butula Sub-County; Mulamba & another (Interested Parties); Musumba (Ex parte) [2025] KEHC 5458 (KLR)**, declined to prohibit the continuation of criminal proceedings based on the argument that the matter was of a civil nature, citing **Kuria & 3 others vs. Attorney General [2002] 2 KLR 69 (Mulwa, J)**: "…That provision has received judicial consideration. In Kuria & 3 others vs. Attorney General [2002] 2 KLR 69 (Mulwa, J), it was said that '… It is not enough to state that because there is an existence of a civil dispute or suit, the entire criminal proceedings, commenced based on the same set of facts are an abuse of the court process. There is a need to show how the process of the court is being abused or misused and a need to indicate or show the basis upon which the rights of the Applicant are under serious threat of being undermined by the criminal process.'" 1. According to the interested party, the reasons given by the prosecution for seeking withdrawal of charges against the Respondents did not demonstrate that the 1st Respondent's rights are under serious threat or that the Interested Party is abusing the court process. 2. According to the victim, the reasons given therefore do not meet the constitutional threshold. 3. The interested party contended that what the prosecution tried to do was to "pull the rug from underneath the Interested Party's feet," ambushing the Interested Party with the withdrawal application without attaching any evidence of actual legitimate reasons, thereby trying to make the trial court a mere rubber stamp to its decision. 4. The victim contended that various courts have frowned upon attempts by the Applicant to make the court a rubber stamp for its decisions. Hon. Lady Justice Koome J (as she then was) observed as follows in **Republic vs Enock Wekesa and Michael B. Watah (2010) eKLR**: "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." 1. The interested party posited that both the court and the victim ought to be satisfied that the reasons given by the prosecution are sufficient to warrant discontinuation or withdrawal of charges, and that in the present case, the trial court was not satisfied that the reasons provided were sufficient. 2. Further, the victim submitted that the Interested Party, as complainant before the trial court, was not informed of the application for withdrawal of charges against the 1st and 2nd Respondents, in clear violation of the rights accorded to victims under the Victim Protection Act. 3. **Section 20 of the Victim Protection Act** clearly provides that a victim has a right to submit information on whether the prosecution may or may not lay a charge, appeal, or withdraw charges. 4. The interested party submitted that the Applicant violated the Interested Party's rights by not requesting information from the victim for its consideration before making the application for withdrawal. 5. Further, the interested party submitted that the Victim ought to have been informed of the revision application and given sufficient time to respond. However, the Victim was only informed on the eve of the mention date and the Applicant even opposed the joinder of the victim to the application a trend that demonstrated clear bias and unwillingness to respect the victim's rights. 6. The interested party cited the case of **Republic v Peter Kibe & 7 others [2021] eKLR**, where the court held: "The Victims Protection Act speaks clearly that it is the obligation of the state an agency to ensure that the Victim is informed of what is going on about their case. The victim stopped being a spectator, the silent partner in their own case and became an active participant and party albeit in a constitutionally acceptable limited way. The Victim is not challenging the Prosecution's mandate to prosecute. The victim is simply holding the prosecution and court accountable for failing to adhere to clear provisions of the law. In our Constitutional dispensation, the rights of the victim are no less than those of the accused person. The mandate of the ODPP includes compliance with the law as the powers conferred both by statute and the Constitution must be exercised in adherence to the same Constitution." 1. In **Mohamed Feisal & 19 others v Henry Kandie, Chief Inspector of Police, OCS, Ongata Rongai Police Station & 7 others; National Police Service Commission & another (Interested Party) [2018] eKLR**, Justice Nyakundi R, citing **Keroche Industries Ltd v Kenya Revenue Authority and 5 others [2007] 2 KLR**, held: "… one of the ingredients of the rule of law is certainty of law. Surely the most focused deprivations of individual interest in life, liberty or property must be accompanied by sufficient procedural safeguards that ensure certainty and regularity of law. This is a vision and a value recognized by our constitution and it's an important pillar of the rule of law. Enforcing the law and maintaining public order must always be compatible with respect for the human person. Under article 73(a) and (b) of the Constitution its provided that authority assigned to a state officer is a public trust to be exercised in a manner that is consistent with the purposes and objects of the Constitution, demonstrates respect for the people, brings honor to the nation and dignity to the once, promotes public confidence in the integrity of the office and vests in the state once the responsibility to serve the people, rather than the power to rule them." 1. It was submitted that the Applicant had failed to demonstrate, through its actions and application, that it was acting within constitutionally permissible parameters, and that the Applicant was in fact acting against public interest, the interest of administration of justice, and is abusing the court process. 2. The victim rhetorically posed the question, what the criminal justice system would be if directors of a company were allowed to illegally convert the assets of a company under administration or liquidation and then walk scot-free on the basis that the matter is of a "civil nature" and ought to be settled before a civil court. 3. The victim submitted that the Insolvency Act contemplates precisely such conduct as an offence, making it an offence under **Section 581 of the Insolvency Act** for any officer of the company to deal with or perform management functions without the consent of the administrator. It was submitted that the Applicant's argument was therefore absurd, since the charges against the 1st and 2nd Respondents arise from the Companies Act and the Insolvency Act, and can only exist because a separate civil suit (the insolvency petition) has been filed. 4. The Interested Party urged the court to find that the reasons provided by the Applicant do not meet the threshold for withdrawal of criminal proceedings against the 1st and 2nd Respondents. 5. The Interested Party held the view that the Applicant had not demonstrated with any degree of certainty that the attempt to withdraw the charges against the 1st and 2nd Respondents was done in the interest of administration of justice, public interest, or that there was an abuse of court process in continuing with the criminal process. 6. The Interested Party's position was that the Application to revise the ruling by the trial court was thus unmerited, frivolous, and an abuse of the court process for violating the victim's rights under the Constitution and Victim Protection Act and urged the Court to decline the application and uphold the decision of the trial court. **ISSUES FOR DETERMINATION** 1. The following issues arise for determination;- a). whether the applicant has disclosed any irregularity, incorrectness, impropriety or illegality in the decision arrived at by the trial court; b). whether it is legally tenable to maintain a criminal prosecution alongside an insolvency petition. c) whether the decision to withdraw the criminal case was in the public interest **ANALYSIS AND DETERMINATION** 1. The applicant by presenting the instant application sought to invoke the Supervisory Jurisdiction of this court in order for the court to call for the record of the lower court and examine the same so as to satisfy itself as to the correctness, legality, regularity or propriety of the decision. 2. The High Court can exercise that power either acting suo moto or on the application of a party. 3. In the case of **Republic vs. Samuel Gathuo Kamau [2016] eKLR,** the Court discussed the supervisory jurisdiction of the High Court at length and observed as follows; “Needless to say, that supervisory jurisdiction is exercised as may be provided by law by way of appeal, revision, etc… it does not include any perceived power to make a decision on behalf of a subordinate Court... In the case of appeals, the supervisory power is exercised in respect to conviction, sentence, acquittal (section 347, 348 and 348A of the Criminal Procedure Code). As for revision, the supervisory jurisdiction is exercised in respect to findings, sentences, orders and regularity of any proceedings see Article 165 (7) of [*the Constitution*](https://new.kenyalaw.org/akn/ke/act/2010/constitution) and sections 362 and 364 of Cap 75…” 4. The court in a revision therefore does not seek to substitute the decision of the trial with its own. The court must remain cognizant of the fact that the scope of a Revision application is limited and the decision ofg the High Court must seek to determine the statutorily laid out matters under Sections 362 and 364 of the Criminal Procedure Code. 5. In the case of Republic vs James Kiarie Mutungei [2017] eKLR Nyakundi J. held thus; “the rationale of the High Court as a revisionary authority can be initiated by an aggrieved party or suo moto made by the Court itself, to call for the record relating to the order passed or proceedings in order to satisfy itself as to the legality, propriety or correctness of the order in question. The scope of revision therefore is more restrictive in comparison with the appellate jurisdiction which requires the high Court to rehear the case and evaluate the evidence in totality by the lower Court to come with a decision on the merits.” 6. The court thus does not in a revision application rehear the matter as would be the case in an appeal. The limitation in scope must be approached also with the guiding principles in interfering with the exercise of judicial discretion if the decision sought to be revised is one resulting from the exercise of judicial discretion. 7. In the case of Sriraja Lakshmi Dyeing Works vs. Pangaswamy Chettair [1980] 4SCC 259 where the Supreme Court of India elucidated the principles as follows: -“The conference of revisional jurisdiction is generally for the purpose of keeping tribunal subordinate to the revising tribunal within the bounds of their authority to make them act according to law, according to the procedure established by law and according to well defined principles of justice. Revisional jurisdiction as ordinarily understood with reference to our statues is always included in appellate jurisdiction but not vice versa. The question of the extent of appellate or revisional jurisdiction has to be considered in each case with reference to the language employed by the statute. The dominal ideal conveyed by the incorporation of the words ‘to satisfy itself’ under section 25 read (which has similar provisions with Kenya’s section 362 of the Criminal Procedure Code, Cap 75 of the Laws of Kenya) is essentially power of the high Court where the high Court is required to be satisfied that the decision is according to law as to the legality and propriety of the order under revision, is quite obviously a much wider jurisdiction. That jurisdiction enables the Court of revision, in appropriate cases, to examine the correctness of the findings of facts also, though the revisional Court is not a second Court of appeal (emphasis supplied).” 8. The language of Section 87(a) of the Criminal Procedure Code leaves no doubt that the court has a judicial role to play in the decision to permit a withdrawal of a case or not. The court does not merely act as a rubber stamp of the prosecutor’s decision to withdraw otherwise it would make no sense that the Constitution under Article 157 (8) requires that the court grants the permission to withdraw. 9. The requirement for the permission of the court before a withdrawal was introduced in the Constitution to check on abuse of prosecutorial discretion which was rampant under the former Constitution where the Hon Attorney General could simply walk into a court and terminate a case without giving reasons. The role of the court is not merely facilitative as argued by the applicant in considering whether or not to grant permission to withdraw a prosecution. 10. The court must interrogate the reasons advanced by the state as it considers the application under Section 87(a) of the Criminal Procedure Code otherwise the courts would be abandoning their role as guardians of the Constitution and the rule of law and would also risk encouraging the presentation of charges that are not intended to be pursued to their logical end by a prosecutor who knows that they may after all withdraw the charges at any time. 11. The power to prosecute is so consequential that before its deployment those that are charged with the making of the decision of whether or not to prosecute must be persuaded before presentation of the charges that the evidential and public interest tests are met. 12. The fact of the subject company being under administration cannot be said to have been bought to the attention of the prosecutor and the investigator after charges had been preferred because the particulars of the charge reference that very fact of administration. 13. The framers of the Constitution alive to the capricious exercise of state power to initiate and terminate criminal proceedings chose to introduce a fetter to the exercise of the power to discontinue a matter once it had been initiated. 14. The law under Section 87(a) of the Criminal Procedure Code leaves it open for the prosecution to rearrest and charge the person against whom charges have been withdrawn at any time before they are put to their defense hence the need for caution in allowing application under that Section where the matter has not reached the stage where a withdrawal would result in an acquittal. 15. The courts must always bear in mind the right of the accused person to a fair trial which includes the rights to have finality in the criminal trial process. 16. In determining application under Section 87(a) of the CPC the court exercises judicial discretion depending on the reasons advanced by the prosecutor when he moves the court seeking a withdrawal. 17. The Court must be reluctant to interfere with the exercise of judicial discretion in a Lower Court unless it is convinced that doing so would be in furtherance of the administration of justice. This principle was clearly stated by the Court of appeal in **Mbogo v. Shah (1968) EA 93** thus: - “***A Court of Appeal should not interfere with the exercise of the discretion of a judge unless it is satisfied that he misdirected himself in some matter and as a result arrived at a wrong decision, or unless it is manifest from the case as a whole that the judge was clearly wrong in the exercise of his discretion and that as a result there has been misjustice.”*** 18. It is incumbent upon the applicant therefore to demonstrate on a balance of probabilities that the trial court in arriving at the impugned decision erred in law by failing to apply the correct principles that guide a court in making such a decision or that the court took into account irrelevant considerations or failed to take into account some relevant matters thereby misdirecting itself on some important point of law hence arriving at a decision that was clearly wrong. 19. The impugned decision in this matter was made on account of what the court regarded as abuse of prosecutorial powers. The court took issue with the manner in which the prosecution went about the conduct of the whole matter citing among others piece meal withdrawals as against respondents co-accused. 20. The court examined the history of the matter and interrogated the reason for withdrawal advanced by the applicant. The court was not persuaded that the mere existence of Insolvency Petitions was reason enough to justify the intended withdrawal. 21. The court took issue with the fact that the victim was not consulted nor informed of the decision to withdraw the matter, and it is that omission on the part of the applicant, that the victim’s counsel argued demonstrated lack of transparency on the part of the applicants in the manner they sought to exercise the power under Section 87(a) of the CPC. 22. The victims of crime in this country since the promulgation of the Constitution and in particular the inclusion of Article 50(7) of the Constitution, coupled with the enactment of the Victims Protection Act ceased being mere observers in a criminal trial and assumed an active role in the Conduct of Criminal proceedings hitherto an exclusive preserve of the prosecutor and the accused person. 23. The input of victims of crime in the making of decisions that affect their cases can no longer be ignored. Article 10 of the constitution requires those that act in the name of the powers conferred upon them under the Constitution must act transparently and in an accountable manner. The accountability and transparency bit would be met if the victim is consulted and their input taken in before making the decision whether or not to continue with the criminal prosecution. 24. The interested party cited the case of **Republic v Peter Kibe & 7 others [2021] eKLR**, where the court held: "The Victims Protection Act speaks clearly that it is the obligation of the state an agency to ensure that the Victim is informed of what is going on about their case. The victim stopped being a spectator, the silent partner in their own case and became an active participant and party albeit in a constitutionally acceptable limited way. The Victim is not challenging the Prosecution's mandate to prosecute. The victim is simply holding the prosecution and court accountable for failing to adhere to clear provisions of the law. In our Constitutional dispensation, the rights of the victim are no less than those of the accused person. The mandate of the ODPP includes compliance with the law as the powers conferred both by statute and the Constitution must be exercised in adherence to the same Constitution." 1. The court agrees with the position taken in the cited decision because the requirement for involvement of victims should not be treated as an unnecessary inconvenience to the prosecutor in the exercise of prosecutorial powers under Article 157 of the Constitution but must be weighed against the backdrop of Article 10 on the principles of good governance which emphasizes transparency and accountability in the conduct of state affairs. 2. The independence of the DPP under Article 157 of the Constitution is beyond debate. However, the exercise of his power is not immune to judicial scrutiny just like any other executive decision to ensure that the awesome power wielded by the DPP is not abused or exercised in a manner that does not accord with the Constitution and statute. In **R.M. Tewari, Advocate v. State (NCT of Delhi) and others1996 (2) Supreme 366: 1996 SCC (Crl.) 361**, the Apex Court quoted its earlier judgment in **Sheo Nandan Paswan v. State of Bihar. AIR 1983 SC 194: 1983 (1) SCC 438.**, and relevant observations made therein in para 11 have been extracted as follows: "From the aforesaid enunciation of the legal position governing the proper exercise of the power contained in Section 321, three or four things become amply clear. In the first place, **though it is an executive function of the Public Prosecutor for which statutory discretion is vested in him, the discretion is neither absolute nor unreviewable but it is subject to the Court's supervisory function.** In fact being an executive function it would be subject to a **judicial review on certain limited grounds like any other executive action, the authority with whom the discretion is vested "must genuinely address itself to the matter before it, must not act under the dictates of another body must not do what it has been forbidden to do, must act in good faith must have regard to all relevant considerations and must not be swayed by irrelevant considerations, must not seek to promote purposes alien to the letter or to the spirit of the legislation that gives it power to act and not must act arbitrarily or capriciously** (emphasis added). 1. The DPP in this matter stated that they acted upon receipt of representation by the respondents that there were other civil proceedings that would potentially affect the instant matter, the office alive to the provisions of Section 193A of the CPC and Section 20 of the Victims Protection Act, should have considered it necessary to consult the Victim on the matter before proceeding to apply to withdraw. 2. That is not to say the DPP would be bound by the victim’s views on the matter but that would have conformed with the statutory intent of Section 20 of the Victims Protection Act. 3. The DPP would still retain the independence guaranteed under Article 157(10) of the Constitution but would have satisfied the requirements of the law under Article 10, 47, 50 (1) and (7) of the Constitution and Section 20 of the Victims Protection Act. 4. It is the duty of the Public Prosecutor to inform the Court of the reasons for withdrawal and it is the duty of the Court to apprise itself of the reasons, which prompt the Public Prosecutor to withdraw from the prosecution. 5. The Court has a responsibility and a stake in the administration of criminal justice and so has the Public Prosecutor, its 'Minister of Justice'. Both have a duty to protect the administration of criminal justice against possible abuse or misuse. The independence of the judiciary requires that once the case has travelled to the Court, the Court and its officers alone must have control over the case and decide what is to be done in each case. 6. If the framers of the Constitution intended otherwise, the inclusion of Article 157 (8) would have been unnecessary. 7. In a revision it is not for the High Court to re-evaluate the reasons given in the lower court. I**n Judicial Service Commission v Mbalu Mutava & Another [2015] eKLR** Kiage JA was for the proposition that the High Court's supervisory jurisdiction "is not, and has never been, an avenue for re-arguing the merits of interlocutory decisions made by subordinate courts in the exercise of their judicial authority, 8. This court, thus understanding its role in the instant proceedings, has examined the record of the lower court against all the arguments tendered in favor for and against the grant of the instant application. The court has come to the conclusion that the applicant has failed to demonstrate the illegality, incorrectness, irregularity or impropriety of the decision by the learned Hon Magistrate. 9. The applicant simply reargued the application for withdrawal but failed to deal with one very important issue in the view of this court; which is, the nature of the Charges under consideration in the particulars left no doubt that the company in issue was under Administration thus that being the very foundation of the charges how then would an insolvency Petition deal with the criminal aspects of the Administrators complaint? 10. In **Republic v Njoroge & another (Criminal Appeal E002 of 2022)**, the court held: "So, what do I make of this? Section 193A of the Criminal Procedure Code is specific on stay of criminal proceedings to give way to civil proceedings. It is emphatic, that criminal proceedings are not to be stayed, prohibited or delayed because of pending civil proceedings. There is no provision which says the same about civil proceedings, prohibiting stay of civil proceedings to give way to criminal proceedings. **I do not read section 193A as saying that civil and criminal proceedings, on the same facts or same issues, can or should run concurrently**. **I understand it to be stating that where it happens that there are concurrent civil and criminal proceedings, then criminal proceedings should not be stayed because of the pending civil proceedings.** **9. To my mind, section 193A bars stay of criminal proceedings, and there is an implicit suggestion that in the event of concurrent civil and criminal proceedings, it should be the civil proceedings that ought to give way.** That would be logical, given that the heavier burden of proof is in criminal proceedings. There is more rigor in criminal proceedings, as a result, and the outcome of criminal proceedings should carry more weight. 10. Consequently, there is absolutely nothing wrong, with having civil proceedings stayed to await determination of pending criminal proceedings. In the instant case, the subject matter of the criminal proceedings and the civil proceedings is the same, the moneys that were released to the complainant. It would embarrass the system should the outcome of the civil proceedings be inconsistent with that of the criminal process. It would only be logical to let one cause be determined first, to avoid such an eventuality. Furthermore, allowing both causes to proceed would ultimately waste judicial resources, in the incidence of contrary opinions and outcomes**." (emphasis mine**) 1. The insolvency proceedings are a culmination of the Company being unable to meet its debts thus the protection of the properties of the company under administration is key thus parliament in its wisdom saw the need to criminalize certain acts of directors or staff of the company as it goes through the process of insolvency. 2. The protection of creditors must begin with making sure that all properties of the company are secured from fraudulent acts of directors or staff of the company. 3. As to whether the charges before the trial court can be determined within the insolvency petitions, this court entertains considerable doubt because the predominant purpose of an insolvency petition is not to resolve criminal acts committed by directors. 4. The trial court once presented with the evidence would determine the guilt or innocence of the accused persons and the mere existence of an insolvency petition cannot be a ground to shield the directors from acts of criminality that may affect the process of administration of the company. 5. The upshot of the above is that the revision application is unmerited and the decision of the trial court is upheld. The foundation of the charges being the fact of the company being under Administration, it would only be fair to allow the criminal proceedings run full course and determine the issues on the basis of evidence since the prosecution appears to have been ready to prosecute the accused persons and there was no indication in the lower court and this court too that evidence may be wanting. 6. The prosecution of persons alleged to have disposed of properties of a company under administration accords with public policy and is in the public interest to deter such conduct if the spirit and letter of the Insolvency Act is to be achieved. This court does not therefore agree with the applicant that the withdrawal of the proceedings is in the public interest. 7. The parties in the matter including the applicant are however encouraged to consider other Alternative Justice Mechanisms to resolve the matter given their familial ties even as the criminal matter proceeds given the relation of the parties. 8. The revision application fails and is accordingly dismissed and the stay vacated. The file shall be returned to the lower court for further proceedings. 9. It is so ordered. **DATED, SIGNED and DELIVERED VIRTUALLY at NAIROBI this 18th day of AUGUST 2026**. **A. M. MUTETI** **JUDGE** **In the presence of:** Habiba: Court Assistant Mogere for the Applicant Mwangi/Wanyoike for victim Kaka for 1st & 2nd Respondent