https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10074

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT KIBERA** **CRIMINAL REVISION NO. E007 OF 2026** WYCLIFFE OKELLO KHABUCHI...........................................APPLICANT VERSUS REPUBLIC..........................................................................RESPONDENT **RULING.** 1. Before this Court is the Notice of Motion dated 28th January 2026 in which the Applicant seeks, inter alia, an order staying the proceedings in Dagoretti Criminal Case No. 009 of 2026, deferment of plea, and a review of the decision to charge him. The application is premised on the contention that the decision to prosecute is currently under review by the Office of the Director of Public Prosecutions (ODPP), and that plea ought not to be taken until that review is concluded. 2. The Applicant contends that the decision to charge him was reached prematurely and without due consideration of his explanation or the documents he presented to the investigating officers. He depones that he is a seventy-five (75) year old man suffering from hypertension and diabetes, as evidenced by the medical report dated 7th January 2026. He further states that he honoured a police summons in December 2025, recorded a statement and was released on police bond. Despite his cooperation and the information supplied to the investigators, a charge sheet was subsequently prepared and the matter fixed for plea. 3. The Applicant further avers that, following representations made to the ODPP, the prosecution requested for the police investigation file to facilitate a review of the decision to charge, thereby acknowledging that further consideration of the matter was necessary. He maintains that notwithstanding the ongoing review and his documented ill health, the trial court proceeded to list the matter for plea on 2nd February 2026 and had earlier issued a warrant of arrest despite being informed that he had been admitted to hospital. 4. The application was canvassed by way of oral and written submissions which have been duly considered and there is no need to rehash them. 5. I have considered the application, the supporting affidavit, the annexures and the submissions placed before the Court. The sole issue for determination is whether this Court has jurisdiction to stay the criminal proceedings, defer plea, or restrain the ODPP from prosecuting the Applicant pending an internal review of the decision to charge. 6. The powers of the Director of Public Prosecutions are constitutionally entrenched under Article 157 of the Constitution. Article 157(10) provides: **"The Director of Public Prosecutions shall not require the consent of any person or authority for the commencement of criminal proceedings and, in the exercise of his or her powers or functions, shall not be under the direction or control of any person or authority."** 1. Equally, section 6 of the Office of the Director of Public Prosecutions Act provides: **"Pursuant to Article 157(10) of the Constitution, the Director shall not require the consent of any person or authority for the commencement of criminal proceedings and, in the exercise of his or her powers or functions, shall not be under the direction or control of any person or authority."** 1. The effect of these provisions is that the decision whether to institute, continue, review or terminate criminal proceedings falls exclusively within the constitutional mandate of the Director of Public Prosecutions. While the ODPP may undertake an internal review of a decision to charge, such a review does not, of itself, divest a criminal court of jurisdiction to proceed with the matter, nor does it confer jurisdiction upon this Court to prohibit the exercise of the prosecutorial mandate. A revision court is confined to the jurisdiction conferred upon it by law and cannot usurp the constitutional functions vested in an independent prosecutorial authority. 2. The applicant’s complaints relate principally to the propriety of the decision to prosecute, a matter falling within the constitutional province of the ODPP. Similarly, the Applicant's age, medical condition and the pendency of an internal review before the ODPP do not constitute legal grounds upon which this Court may stay criminal proceedings or restrain the institution or continuation of a prosecution. In my view, the Applicant has not demonstrated that the trial court acted without jurisdiction, committed any illegality, impropriety or material irregularity, or violated any constitutional or statutory provision in directing that plea be taken. 3. In the circumstances, I find that this Court lacks jurisdiction to stay the proceedings, defer plea, or prohibit the Director of Public Prosecutions from preferring or proceeding with charges against the Applicant. The application is devoid of merit and is hereby dismissed. Orders accordingly. **Ruling dated and delivered virtually this 8th day of July 2026** **\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_** **D. KAVEDZA** **JUDGE** **In the presence of:** Mr. Kangethe for the Applicant Mr. Mutuma for the Respondent Karimi Court Assistant.