Court recommends that a private prosecutor who has been given leave to prosecute ought to be given a limited right of appeal

Brief facts

The appellant filed the instant appeal against the ruling of the trial court that denied him leave to privately prosecute (to institute criminal proceedings) against the 1^st respondent on a charge of stealing his motor vehicle. The appellants grounds of appeal included that; the trial court erred in law and fact in dismissing the application on the basis that the dispute was of a civil nature without considering the elements of the offence; the trial court erred in law and fact in failing to observe that the decision of the Director of Public Prosecutions (DPP) not to prosecute the 1^st respondent was arbitrary and unreasonable; and the trial court erred in law and fact in failing to find that the 3^rd respondent had sufficient evidence to sustain a conviction against the 1^st respondent.

The appellant submitted that the appellants car was stolen and the appellant reported the matter to Railway Police Station. The appellant further submitted that police found the motor vehicle in the possession of the 1^st respondent; who failed to explain how he acquired its possession. After investigations the Directorate of Criminal Investigations (DCI) Railway forwarded the investigation file to the DPP for perusal and approval to institute criminal proceedings against the 1^st respondent. Subsequently, the DPP declined to prefer charges against the 1^st respondent, which prompted the appellant to apply for permission to file a private prosecution against the 1^st respondent. 

Issues

1. Whether a private prosecutor had a right to appeal against the decision of a Magistrate Court. 
2. What was the option available to a private prosecutor who sought to appeal against the decision of a Magistrate Court? 
3. What was the proper citation of parties in a trial court in a matter involving a private prosecutor? 
4. Under what circumstance could the Director of Public Prosecutions participate in an appeal instituted by a private prosecutor? 
5. Under what circumstance was the exercise of powers by the Director of Prosecutions subject to review by courts? 

Relevant provisions of the law

Criminal Procedure Code, Cap 75 Laws of Kenya

Section 88

1) A magistrate trying a case may permit the prosecution to be conducted by any person, but no person other than a public prosecutor or other officer generally or specially authorized by the Director of Public Prosecutions in this behalf shall be entitled to do so without permission.

(2) Any such person or officer shall have the same power of withdrawing from the prosecution as is provided by section 87, and the provisions of that section shall apply to withdrawal by that person or officer.

(3) Any person conducting the prosecution may do so personally or by an advocate.

Held

1. The Constitution of Kenya, 2010 (Constitution) had in a large measure constitutionalized the criminal procedure processes. The only right of appeal donated to an aggrieved party was in respect of the person, who had been convicted and sentenced. All the remaining aggrieved parties could only appeal if there was in place a statutory right of appeal enabling them to appeal in the Criminal Procedure Code (Cap 75) Laws of Kenya. In the context of a trial in the Magistrates Court, it was only the DPP on behalf of the Republic, who was allowed to appeal to the High Court under section 348A of the Criminal Procedure Code. No such similar right of appeal was conferred upon the private prosecutor. 

2. A right of appeal was a creation of statute. In other words, an appellant had to point out the statutory authority that allowed him to appeal. Where the statute did not give an aggrieved party a right of appeal from one tribunal to another, there was no such right. Section 88 of the Criminal Procedure Code did not give the prosecutor a right of appeal. In the absence of an enabling statutory law permitting a private prosecutor to appeal, he could not in law appeal. There was no such thing as a general right of appeal for it was either conferred by statute or not. That left the private prosecutor with the only option of seeking a remedy in a civil court. 

3. In colonial Kenya, the private prosecutor had a limited right of appeal. The right of appeal that was given to the private prosecutor was subject to obtaining the written consent of the Attorney General, before appealing. The requirement for obtaining the consent was because the appeal was one against an acquittal, the safe guard was necessary to prevent the accused being put in jeopardy a second time except upon the soundest grounds.

4. In post independent Kenya, a private prosecutor appealed to the Court of Appeal and that court rendered a controversial decision that recognized the right of appeal of a private prosecutor against an acquittal. The decision was rendered under the 1963 Independence Constitution of Kenya, whose precedential value was only persuasive but not binding following the proclamation of the Constitution of Kenya ,2010. 

5. It was recommended that a private prosecutor who had been given leave to prosecute under section 88 Criminal Procedure Code ought to be given a limited right of appeal. That would be necessary to avoid creating judicial dictatorship in the lower courts. In order to protect an accused who had been acquitted by the lower court, the victim or complainant who intended to appeal had to seek leave of the High Court before he appealed.

6. The citation of the parties at the trial court should have been as follows: -

Republic through Anwar Sadat Abdulmajid...prosecutor

Versus

Mohammed Mohammed Khitami.accused 

It was therefore wrong in law for the private prosecutor to cite himself as the appellant in the court and to cite himself as the prosecutor in the Magistrates Court. If the proper citation had been done, the private prosecutor could have found out that he did not have a right of appeal against the order appealed against; since he was not a party to the proceedings in the Magistrates Court. It was the improper citation of the parties that had continued to cause confusion in private prosecutions. 

7. The DPP and the DCI (Railway Police Station) were cited as respondents in the appeal. Both the DPP and the Railway police station were wrongly cited as respondents for the following reasons. The private prosecutor was not seeking any order against them. Additionally, the work of the Railway Police Station ended when they finished their investigations and the work of the DPP ended when he refused to prosecute the 1^st respondent. The only way the DPP would have participated in the appeal was either upon his own application or upon being invited as amicus curiae by the court.

8. The DPP did not apply to the court to be struck off the proceedings since he was wrongly joined as a party. The reason being that what was challenged by the private prosecutor in the instant court was the order of the Magistrates Court dismissing his application for permission to prosecute the 1^st respondent. The conduct of the DPP in the Magistrates Court was not an issue before the instant court, since the exercise of his prosecutorial power was sovereign and independent under article 157 of the Constitution. The exercise of that power was not subject to review by the court unless the conduct amounted to an abuse of the court process. 

9. The language of counsel for the private prosecutor (the appellant) was a matter for concern because in his submissions he submitted that: the 1^st respondent failed to prove how it came into his possession and therefore he was either the thief or a person who was dealing in the stolen vehicle. Counsel, as an advocate of the court should not use such language for an order of conviction from which flowed that a party was a thief was a finding by a court of law. For counsel to call a party a thief was arrogating to himself the powers conferred by a court of law. Counsel should use sober and temperate language. 

10. A private prosecutor needed to be reminded that if his complaint was found to be frivolous or vexatious or unreasonable he was liable to pay costs to the public prosecutor in terms of section 171 of the Criminal Procedure Code.