Judge calls out DPP over withdrawal of cases

A high court judge has made a ruling likely to unsettle the Office of the Director of Public Prosecutions (ODPP) after declaring that the office cannot withdraw cases at will without the consent of the courts.

In the ruling, Justice Nixon Sifuna dismissed the recent withdrawals of the cases by the ODPP as "a laundry manner of prosecution practice that is steadily, undesirably taking root in Kenya".

The judge made the declaration when upholding the decision of Senior Principal Magistrate Victor Wakumile who dismissed the application by the ODPP to drop graft charges against former Kenya Pipeline Corporation Managing Director Charles Tanui and senior managers Josephat Kipkoech Sirma and Elias Maina Karumi.

"This practice is not only unorthodox but also a vice that prosecutors need to urgently start disabusing themselves of. This space is what trial courts such as the magistrate herein need to ring-fence, and when they do it, cannot be faulted," stated Sifuna.

Sifuna said the task of analysing the evidence adduced in a case and finally pronouncing whether the accused person is guilty or innocent, belongs to the court itself (the judicial officer presiding at the trial) and not the parties or their litigants.

Sifuna, in the ruling delivered on January 31, 2024, said this task cannot be jointly shared with the parties in the case and can't be usurped by the parties in such cases, including the prosecutors.

The judge made the ruling in the case where Sirma had filed, challenging the decision of Dr Wakumile.

The ODPP had made the application through Principal prosecution counsel Jeremiah Walusala to withdraw the cases against the three stating that he had received letters from the suspects requesting for a review of the decision to charge them.

Walusala, in an affidavit filed in court, stated that upon review of the evidence vis a vis the said letters, the DPP decided that it was not tenable to proceed with the case against the respondents (suspects) without occasioning injustice.

But Senior Principal Magistrate Victor Wakumile rejected the application to terminate the prosecution of the three suspects which prompted Sirma to move to the high court where he lost after Justice Sifuna dismissed his application.

Sifuna said, "In a criminal trial, the prosecution should present the evidence it has and let the court decide. It cannot again in the course of the trial suddenly make a 360 degrees turn and declare the accused persons or any of them innocent as attempted by the prosecution in this case, and in the series of a few selected others in which it has sought to drop charges".

"It is not for the prosecutor to declare the accused innocent. Such a declaration is unacceptable and extra-judicial, a mutinous change of roles, as well as excess and usurpation of jurisdiction. It is the trial magistrate that will on the date of judgement or ruling on "no case to answer", absolve the accused or any of them of wrongdoing."

This ruling means the ODPP lacks the power to terminate the prosecution of suspects once they are charged before the courts.