Private prosecution in Kenya: What you need to know and why courts rarely allow it
A Kakamega High Court ruling halted a private prosecution and upheld a DPP diversion deal, reaffirming that private prosecutions in Kenya are rare, tightly controlled and only allowed in exceptional cases.
Private prosecution has once again come under judicial scrutiny following recent High Court decisions reinforcing the constitutional authority of the Director of Public Prosecutions (DPP) over criminal cases.
In a ruling delivered in Kakamega on December 1, 2025, the High Court halted an attempt by a complainant to pursue a private prosecution and upheld a diversion agreement that had been approved by the DPP.
More To Read
- IPOA launches probe as family demands truth over boda boda rider’s death in Nairobi police cell
- Explainer: How courts operate when the judiciary goes on recess
- Lawyer petitions CJ Koome to lift restrictions on e-filing system, cites rights violations
- Senator Sigei urges state agencies to share responsibility for protecting human rights
- Judiciary faces Sh576.6 million pending bills amid budget review
- DPP calls for stronger inter-agency action on hate speech and incitement cases
The court faulted a magistrate’s earlier decision allowing the complainant to institute criminal proceedings, finding that it undermined the DPP’s constitutional mandate.
In its decision, the court stressed that “the power to institute and undertake criminal proceedings is constitutionally vested in the DPP,” adding that this authority “cannot be diluted through parallel private actions where the DPP has acted lawfully.”
Private prosecution allows a citizen to initiate criminal proceedings where the State has failed, refused, or neglected to act.
However, courts have consistently held that this right is exceptional and must be exercised sparingly and under strict safeguards.
Judges have reiterated that a complainant seeking to privately prosecute must first demonstrate that the matter was reported to investigative agencies or to the DPP, and that the refusal to prosecute was unreasonable, unlawful, or amounted to an abuse of power.
“Private prosecution is not a substitute for personal dissatisfaction with prosecutorial decisions,” the court observed.
Courts also closely examine whether such cases are supported by credible evidence and whether they are free from malice, vendetta, or an attempt to settle personal scores through the criminal justice system.
In the Kakamega ruling, the High Court noted that the complainant had failed to meet this threshold.
Recent jurisprudence has further underscored that prosecutorial independence is a core constitutional principle.
According to the court, allowing private prosecutions to proceed unchecked would “erode the coherence and integrity of the criminal justice system.”
The DPP, under the Constitution, retains the authority to take over, continue, or discontinue any criminal proceedings, including those commenced privately.
Where the DPP opts for lawful alternatives such as diversion or alternative dispute resolution, courts have shown little tolerance for private prosecutions aimed at reopening resolved disputes.
Still, the courts have left the door ajar for exceptional cases.
“Where there is clear evidence of abuse of power, bad faith, or total inaction by State agencies, the courts will not hesitate to intervene,” judges have said.
Overall, the growing body of case law shows that private prosecution remains a narrowly tailored remedy — one designed to promote accountability without undermining the central role of the DPP in Kenya’s criminal justice system.
Top Stories Today
