High Court Nullifies Warrants Against Senior Prosecutor Over Charging Decision

The High Court has ruled that subordinate courts do not have jurisdiction to question the validity of prosecutorial decisions made by the Office of the Director of Public Prosecutions (ODPP).

Lady Justice C Meoli ruled this on Tuesday after the ODPP filed a revision application against proceedings before the subordinate courts in Kajiado.

The trial court had summoned the prosecutor to give the reasons for charging an accused person with land fraud and issued arrest warrants for his absence.

“The propriety or otherwise of a prosecutorial decision cannot be canvassed through the testimony of a prosecuting counsel before a trial court,” Justice Meoli ruled.

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The Legal Principle of Prosecutorial Independence and the Role of the ODPP in Kenya

She stated that any such challenge has to be done through the due process before a competent court, not through compelling the prosecution to be a witness in a case where he was neither the complainant nor an investigator, nor had sworn any affidavit, nor a person whose evidence was necessary for the just disposal of a cause.

The judge ruled that such actions by the subordinate court were “an overreach and an attempt at indirect control or supervision of an independent constitutional office”.

Lady Justice Meoli found that the prosecutor in this case was neither a state witness nor an investigator; neither had he sworn any affidavit, nor was he a person whose evidence was crucial in the just determination of the cause.

“The prosecutor was not an accused, nor was he a witness, nor an investigator in the matter. He was summoned for the sole purpose of being cross-examined on the decision of the Director of Public Prosecutions to charge,” she said.

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The High Court’s Ruling on Prosecutorial Independence in Kenya 

Court emphasized that such scrutiny of prosecutorial decisions by trial courts goes against the constitutional independence of the ODPP.

Assistant Director of Public Prosecutions Ms. Vivian Kambaga represented the ODPP in the revision application before the High Court.

“This is a victory for the prosecutorial independence and the rule of law,” the ODPP posted the decision on its channels under the hashtag #HakiNaUsawa.

The case started from land fraud matters, where the prosecution of a suspect came under scrutiny of the subordinate court for questioning over the grounds for charging.

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Office of the Director of Public Prosecutions/ PHOTO ODPP FB