[2022] KEHC 2589 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT KITUI

HIGH COURT CRIMINAL CASE NO. 37 OF 2018

REPUBLIC.............................................................................................................STATE

VERSUS

WJMaliasMS...........................................................................................DEFENDANT

R U L I N G

1. WJM alias MS is charged with the offence of murder Contrary to Section 203as read withSection 204of the Penal Code.The particulars are that on 19th November, 2018 within Kitui County, he murdered one MM.

2. When the subject (he was 17 years old when charged) was presented to this court, he denied committing the offence but subsequently both the office of Director of Public Prosecution and the defence notified this court that negotiations were under way and requested for time for a plea bargain. The Director of Public Prosecution through Mr. Okemwa informed this court that the subject was a school going minor and that it was in the interest of the public to allow him continue with his education. Against that backdrop he applied to be allowed to terminate the proceedings against the subject through nolle prosqui.

3. There were affidavits sworn on 19th January 2021 by GM, an aunt and guardian of the deceased as well as SWM and FWW the parents of the subject. The affidavits indicate that the parents of both sides have reconciled through a cultural arrangement where the victim’s family was compensated in an agreed traditional way.

4. The affidavit sworn by MM, a sister to the deceased sworn on 19th January, 2021 lends credence to the family arrangements reached.

5. The powers of the Director of Public Prosecution to enter a nolle prosequi are donated under Article 157(6)(c) of the Constitution which stipulates as follows: -

‘‘(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 judgement is delivered any criminal proceedings instituted by the Director of Public Prosecutions or taken over by the Director of Public Prosecutions under paragraph (b).’’

6. Furthermore, Section 25 (1) of the Office of Director of Public Prosecution’s Act, 2013 also provides for the same. It states: -

‘‘The Director may, with the permission of the court, discontinue a prosecution commenced by the Director against any person or authority at any stage before delivery of judgement.’’

7. From the foregoing, it is clear that the power to terminate criminal proceedings is not absolute because it is subject to permission or discretion of a court of law as clearly provided under Article 157(8) of the Constitution.

8. The court’s discretion in determining whether to allow or not to allow the Director of Public Prosecution to terminate criminal proceedings against a suspect is well guided under Article 157 (11) of the Constitution of Kenyawhich provides follows: -

‘‘In exercising the powers conferred by this Article, the Director of Public Prosecution 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.’’

9. In this instance, the main ground relied on by the Office of the Director of Public Prosecution to enter nolle presequi is that it is acting in good faith to allow the subject go back to school and continue with his studies.

10. The prosecution further contends that the same action was informed by an agreement between the family of the deceased and the subject to settle the matter out of court in a traditional way.

11. This court has gone through the social inquiry report and there is one issue which has got the attention of this court and that is the past tendencies of the subject of inability to control his anger. That inability may have caused him to commit the offence for which he is now charged. There is no evidence shown to this court to show that the subject has undergone some form of rehabilitation or psycho-social support in anger management and that in my view, places a fetter in the exercise of this court’s discretion to allow the application by the State. Why do I say so? If there is no evidence that the minor has undergone an anger management program and now knows how to deal with his anger, there is no guarantee that he has transformed and may not direct his uncontrolled anger to another victim.

12. The prosecution in this matter had initially indicated that they were engaged on a plea bargain exercise but it did not report back on how the process went. It only came back and stated that because both the family of deceased and accused had agreed to some compensation it had decided to terminate the proceedings. In my view, in serious matters such as murder, agreement between families should not be the sole ground to enter a nolle prosequi. It can be a ground for plea bargain which could give a chance for the court assess the remorsefulness of the accused and determine appropriate dispensation of justice. That would serve the public interest and the interest of administration of justice in general.

13. The social inquiry report filed indicates that a sister to the deceased initially appeared not to have been pleased with the arrangements because she claims she was not involved from the beginning and though I have seen an affidavit from her saying that she has no problem with the termination of the proceedings, this court finds that in offences of this nature, the state should use the powers donated to it to terminate proceedings very sparingly and only in appropriate cases. It should instead as I have observed above opt for plea bargain as provided under Section 137 A of Criminal Procedure Code because that way the court is able to determine the circumstances of the offence, appropriate sentence depending on remorsefulness, the victim impact assessment, past records etc. This is a similar position taken in the case of Republic versus Mutati Mwende [2021] eKLR.

14. This court finds that because the prosecution’s decision is solely based on the agreement reached between the two families, the decision to enter nolle prosequi is not in public interest as it sends wrong signals out there that where a serious offence such as murder is committed, the matter can be terminated so long as both families agree to do so. It is this court’s view that in instances where good faith prevails, the process of plea bargain ought to be conducted to its logical conclusion to avail justice to both the victim’s family and the accused. In this matter the subject is a child in conflict with the law. While it is true that it is fair that the child should be given a chance to continue with his studies, it should not be lost that the child has issues with his anger which might require rehabilitation process such as probation, counselling and psychosocial support to be monitored by probation officer for some given time to facilitate healing in order to ensure that the subject does not pose danger to the public. That in my considered view in having regard to the public interest and interest of the administration of justice as clearly expressed under Article 157 (11) of the Constitution of Kenya.

In the premises, this court declines the nolle prosequi dated 9th November, 2021 entered by the Office of the Director of Public Prosecution and directs that the earlier process of plea bargaining be conducted to its logical conclusion. In that regard, this court hereby gives the parties 30 more days to conclude the process.

Dated, SignedandDeliveredatKituithis7th day ofFebruary, 2022.

HON. JUSTICE R. K. LIMO

JUDGE