Stanley Munga Githunguri V Republic eKLR
|Miscellaneous Criminal Application 180 of 1985||11 Jul 1985|
Alfred Henry Simpson, William Mbaya, Surrender Kumar Sachdeva
High Court at Nairobi (Milimani Law Courts)
Stanley Munga Githunguri v Republic
Stanley Munga Githunguri v Republic eKLR
Stanley Munga Githunguri v Republic
High Court, at Nairobi
July 11, 1985
Simpson CJ, Sachdeva & Mbaya JJ
In the Matter of the Constitution of the Republic of Kenya
Miscellaneous Criminal Application No 180 of 1985
Criminal Practice and Procedure – powers of a trial court - power to disallow abuse of court process - power to disallow a prosecution which is an abuse of court process – court in which such power is vested – whether the subordinate court is vested with such power.
Attorney-General – powers of – power to institute and undertake criminal proceedings – how such power exercised – whether High Court has inherent power to supervise exercise of such power – accused investigated for offence - accused informed by Attorney General that he would not be prosecuted – accused’s property under investigation restored to him – accused charged with offence five years after Attorney-General’s decision – whether accused’s prosecution vexatious, abuse of court process and contrary to public policy – right of an accused to fair treatment and protection from misuse of the court process - Constitution of Kenya section 26.
The applicant was charged in a subordinate court with four counts of offences under the Exchange Control Act (cap 113) which were alleged to have been committed in 1976 and 1979. The applicant’s advocate stated to the trial court that the charges against the applicant had been the subject of a police investigation six years earlier which resulted in the office of the Attorney-General deciding not to prosecute, a decision which the office had officially communicated to the applicant and certain money which was the subject of the investigations had been restored to him. The advocate stated further that this position prevailed through the terms of two Attorneys-General and was reiterated in parliament by one of the successive holders of that office.
The applicant’s advocate made a preliminary application under section 67(1) of the Constitution for the reference to the High Court of the issue of whether the Attorney-General’s office had properly exercised its power under section 26 of the Constitution in reviving the charges against the applicant. The trial court allowed the application and referred the issue to the High Court. In the High Court, the respondent’s counsel raised a preliminary objection seeking to strike out four of the five questions framed by the applicant’s advocate for the interpretation of the Court on the ground that the questions were outside the Court’s Constitutional function.
- Notwithstanding the powers conferred upon the Attorney-General by section 26(3) of the Constitution, the High Court has an inherent power and duty to secure fair treatment for all persons who are brought before it or a subordinate court and to prevent an abuse of the process of the court.
- In Kenya, subordinate courts have no inherent power or discretion to refuse to hear a criminal case prosecuted by the Attorney-General or his representative on the ground that it is an abuse of the process of the court.
- It was mandatory for the trial magistrate to refer to the High Court the questions framed by the applicant and if the respondent’s counsel objected to any of them, he should have raised that objection in the subordinate court.
- The Attorney-General is given an unfettered discretion to institute and undertake criminal proceedings by section 26 of the Constitution but this discretion should be exercised in a judicious way. It should not be exercised arbitrarily, oppressively or contrary to public policy.
- It is proper for the office of the Attorney-General to institute criminal proceedings charging a person with offences allegedly committed over nine years earlier even if this is done after that office had upon a full inquiry decided not to prosecute but to close the relevant file.
- The right of the Attorney-General’s office to change its decision not to prosecute a person may be lost if the accused has been publicly informed that he will not be prosecuted and his property which was seized in investigating the alleged offence has been restored to him. The accused person may have destroyed or lost his evidence as a consequence of being led to believe that there would be no prosecution.
- The preferment of a charge against any person nine years after the alleged commission of the offence, six years after a full inquiry in respect of it and five years after the decision of the office of the Attorney- General not to prosecute and to close the file is vexatious, harassing, an abuse of the process of the court and contrary to public policy unless a good and valid reason exists for doing so, such as the discovery of important and credible evidence or the return from abroad of the person concerned.
- In the circumstances of this case, to institute the proceedings against the applicant at the time was vexatious and an abuse of the process of the court.
Respondent’s preliminary objection dismissed, trial magistrate at liberty to proceed with trial unless the Attorney-General terminates the proceedings or the accused applies for a prerogative order.
- R v Brentford Justices, ex parte Wong  1 All ER 884; (1981) 73 Cr App R 200
- Connelly v DPP  2 All ER 401;  2 WLR 1145
- DPP v Humphrys  2 All ER 497;  AC 1; (1976) 63 Cr App R 95
- R v Grays Justices, Ex parte Graham  3 All ER 653;  QB 1239;  3 WLR 596
- Dickens, B. M. “Control of Prosecutions in the United Kingdom” Comparative Law Quarterly 22 (1973) p 11
- Jones, E. “The Office of the Attorney-General” Cambridge Law Journal 27 (1969) p 49
- Williams, G. “Discretion in Prosecuting” Criminal Law Review (1959) p 222
- Constitution of Kenya sections 26(1), (2), (3), (4), (5), (6), (7), (8); 67(1)
- Exchange Control Act (cap 113)
- Criminal Procedure Code (cap 75)
- Messrs B Georgiadis, AA Lakha & O Opiyo for the Applicant
- B Chunga, Assistant Deputy Public Prosecutor, for the Respondent
As the Attorney-General failed hereafter to terminate the case against the applicant, he (the applicant) filed a further application in the High Court for a prerogative order. This application is reported in  KLR 1.