[2004] KEHC 1756 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

H.C. CRIMINAL APPLICATION NO. 820 OF 2002

STEPHEN GICHUHI & 30 0THERS ……………….… APPLICANTS

V E R S U S

THE REPUBLIC ……………………………….………RESPONDENTS

R U L I N G

This matter before us has come by way of reference from the Chief Magistrate’s Court at Thika in Misc. Criminal Case No. 8 of 2001. As it raised an issue of interpretation of Constitution, the Hon. The Chief Justice constituted this Bench as per provisions of Section 67 (3) of the Constitution.

The issue which is referred before us to be determined is

whether the right to institute Private Prosecution Conferred by

Section 88 (1)of the Criminal Procedure Code contravenes or

is inconsistent with Section 26of the Constitution.

For the sake of clarity we shall quote relevant parts of the

aforesaid two provisions. Section 88 (1) of the Criminal

Procedure Code stipulates:

88. (1) A magistrate trying a case may

permit the prosecution to be

conducted by any person, but no

person other than a pu blic

prosecutor or other officer

generally or specially authorized

by the Attorney General in this

behalf shall be entitled to do so

without permission.

Section 26 (3), (5) & (6) of the Constitution stipulates:

26. (3) The Attorney -General shall have p ower in

any case in which he considers it

desirable so to do –

(a) to 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 by that perso n:

(b) To take over and continue any such

criminal proceedings that have been

instituted or undertaken by another

person or authority: and

(c) to discontinue at any stage before

judgment is delivered any such

criminal proceedings instituted or

undertaken by himself or another

person or authority.

………………………………………………….

(5) The powers of the Attorney -General under

subsections (3) and (4) may be exercised by

him in person or by officers subordinate to

him acting in accordance with his general

or special in structions.

(6) The powers conferred on the Attorney -

General by paragraphs (b) and (c) of

subsection (3) shall be vested in him to the

exclusion of any other person or authority.

Provided that where any other person or

authority has instituted criminal proc eedings,

nothing in this subsection shall prevent the

withdrawal of those proceedings by or at the

instance of that person or authority and with

the leave of the court.

Mr. Karago the learned Counsel for the Applicant

contended that because the right to institute any criminal

proceedings is conferred only on the Attorney General as per

Section 26 (3) (a)of the Constitution, the provisions of

Section 88 (1)allowing a magistrate to permit institution of

criminal proceedings is in direct conflict with the

Constitutional Provision and thus is unconstitutional and

should be declared as null and void.

He relied on two cases to substantiate his contentions

namely:- (1) Jopley Constatine Oyieng –V- Republic

Criminal Appeal No. 45 of 1988 and (2) Stephen Mwai

Gachiengo and another –Versus- Republic Misc

Application No. 302 of 2000.

The first case was an appeal against the order of the High

court where the appellant had gone to High Court under

Section 67and Section 84of the Constitution. The

application arose against the refusal by the Magistrate to

admit a Complaint made under Section 88 (1)of the Criminal

Procedure Code. The refusal was admittedly under Section

89 (5) of the Criminal Procedure Code.

The issue of Constitutionality of Section 88 (1) was not

before the Court of Appeal which dismissed the appeal on the

ground that question of interpretation under Section 67of

the Constitution was neither before the Magistrate nor before

the High Court. Similarly no matters were raised to bring the

Application under Section 84of the Constitution. While

determining these issues which were properly before the court,

the Judgesinteralia(emphasis ours) observed and we quote:

“Only the Attorney General has the

right under section 26 of the Constitution

to institute criminal proceedings. No

similar right is extended to a private

individual and it is obvious that section

88 (1) of the Criminal Procedure Code does

not override Section 26 of the

Constitution.”

We think the aforesaid observations do not conclude that

Section 88 (1)of Criminal procedure Code is unconstitutional.

What is said is plainly that Section 26shall take precedence

over the provisions of Section 88 of Criminal Procedure Code.

We refrain from commenting further on those observations.

However, we also note that the court did not stop there.

The Judges went further and immediately after the above

observation, they stated:-

“Section 26 (3) contemplates prosecutions

by authorized parties in respect of which

the Attorney General may act as provided

in the sub -section.”

In our opinion, with these observations, the court has

accepted the prosecutions by others, other than the Attorney

General. Thus in our opinion, this authority does not help the

Applicant to further his contention.

Second authority relied by the applicant is a famous case

popularly known as ‘KACA case’(Misc. Criminal Appeal

820/2002. ) The Constitutional Court comprising of three

Judges declared Section 11Bof Prevention of Corruption

Act (Cap 65) voidbeing inconsistent with Section 26of the

Constitution. Their reasons for such finding are on page 8 of

the unreported Judgment and we deem it fit to quote the

same:

“When Section 11B was inserted into

Cap. 65 the Provisions of Section 26 of the

Constitution remained unamended. Under

Section Section 26 of the Constitution the

Attorney General is the Principal Legal

adviser to the Government of Kenya. He

has powers under the Constitution to

institute and undertake proceedings

against any person and to take over or

discontinue criminal proceedings

instituted or undertaken by any person or

authority. Under Section 26 (4) the

Attorney General may require the

Commissioner of Police to investigate a

matter as relates to any offence. Section

11 B(5) provides that the Dire ctor of KACA

may assume responsibility for any

investigation or prosecution commenced

by the police. Section 10 of Cap 65 gives

powers to the Director of KACA to cause a

police officer to investigate any bank

account, share account or purchase

account of any person (underlining ours)”

It is clear from the above passage that the KACA by the

said Act was usurping the Constitutional powers vested in the

Attorney General and that the provisions were made in the Act

to take over the powers of the Attorney General which the

Constitution itself has not allowed to be delegated.

Does Section 88 of the Criminal Procedure Code take

over the powers of the Attorney General which are not

supposed to be carried out by anyone else except the Attorney

General?

In our considered opinion, it does not.

We do not have to go further to substantiate our opinion

but only to look at the provisions of section 26of the

Constitution.

26. (3) (b) and (c)do postulate that the criminal

proceedings can be instituted or undertaken by another

person or authority or sub-ordinate officers are allowed to

exercise powers of Attorney General in accordance with his

general or special instruction which the Attorney General can

take over, continue or discontinue at any stage before the Judgment is delivered.

Similarly the language of Section 26 (6)does postulate

that the proceedings can be instituted or undertaken by any

person or authority.

It was argued by the learned counsel for the Applicant

that any person or authority stipulated in those provisions

have to be those on whom the Attorney General has delegated

those powers.

We do not agree to that contention in the face of the clear

provisions of Section 26 (5)of the Constitution if that was the

intention of the makers of the Constitution, as contended by

the Respondent it could have been specifically provided as has

been done in respect of Section 26 (5)of the Constitution. It

has to be noted that all these provisions are contained in one

section.

Further more, we do note that the proceedings can not be

instituted without following the provisions of Section 89of

the Criminal Procedure Codewhich provides for the

institution of proceedings culminating in issuance of summons or warrant against the accused persons. The said

section Vis - a- vis Section26 of the Constitution was

scrutinized by the Constitutional Court in the case of Raila

Odinga V. Professor George Saitoti (Misc application No. 3

of 1995 (Unreported). The Court cited the case of Shah V.

Patel (1954) 21 E. A. C. A. 236 with approval and specifically

the following passage Viz

“Even in private Prosecution, the

prosecutor in law is the crown (that is the

Republic) at the instance of the private

prosecutor whoever he may be. That must

be so ……….. flows directly from Section

82 of the code which gives the Attorney

General a residural control over every

Criminal proceeding at any stage

thereof.”

We agree with the reasoning of the said case and reaffirm

that the Attorney General has over all control on all Criminal

proceedings including a private Prosecution at any stage

thereof before a verdict or judgment is pronounced.

We also reiterate that the provisions of Section 26 3 (b)

&(c) coming after Section 26 3 (a)make the provisions of

Section 88of the Criminal Procedure Code in complete

harmony with Section 26of the Constitution, and not to the

contrary.

In the premises, we find that Section 88 of the Criminal

Procedure Code (Cap. 75) does not contravene provisions of

Section 26 of the Constitution.

This reference thus fails and we direct that the matter i.e

Misc. Criminal Case No. 8 of 2001 be referred back to Chief

Magistrates’ court at Thika to proceed as per law.

Applicant shall pay costs of this reference.

Dated and delivered at Nairobi this 18th day of May,

2004.

……………………………..

K. H. RAWAL

JUDGE.

………………………….

M. G. MUGO

Ag. JUDGE

……………………………………

L.K. KIMARU

Ag. JUDGE