A nolle prosequi does not infringe upon the right to information of the victims of the crime.

Brief facts

The accused persons had been jointly charged with the offence of murder. They pleaded not guilty. When the matter came up for pre-trial conference, the Director of Public Prosecution (DPP) entered a nolle prosequi (unwilling to pursue) with the intention to have the charges against the accused persons withdrawn.

This nolle prosequi was opposed by the victims on the grounds that the DPP had not given reasons in writing for entering the nolle prosequi, that the nolle prosequi  was entered into in bad faith and that the nolle prosequi infringed upon the rights of the victims under the  Victims Protection Act. 

Issues

1. What were the circumstances in which the Director of Public Prosecutions could enter a nolle prosequi?
2. Whether an accused person could be subjected to the same charges later on after a nolle prosequi had been entered by the DPP.
3. Whether the Director of Public Prosecutions had the duty to inform the victims of an alleged crime of the reasons why he entered a nolle prosequi. 
4. Whether the decision to enter a nolle prosequi had a bearing on the rights of victims of the accuseds alleged crime.
5. Whether the Director of Public Prosecutions, in entering a nolle prosequi, infringed upon the rights of the victim of the accused's alleged crime to be informed in advance of the evidence the prosecution and defence intended to rely on and to have reasonable access to that evidence.
6. Whether the Director of Public Prosecutions exercised absolute and unfettered authority in the exercise ofhis functions.

Relevant provisions of the law

Constitution of Kenya, 2010 

Article 157

157.    Director of Public Prosecutions

(1)       There is established the office of Director of Public Prosecutions.

(2)       The Director of Public Prosecutions shall be nominated and, with the approval of the National Assembly, appointed by the President.

(3)       The qualifications for appointment as Director of Public Prosecutions are the same as for the appointment as a judge of the High Court.

(4)       The Director of Public Prosecutions shall have power to direct the Inspector-General of the National Police Service to investigate any information or allegation of criminal conduct and the Inspector-General shall comply with any such direction.

(5)       The Director of Public Prosecutions shall hold office for a term of eight years and shall not be eligible for re-appointment.

(6)       The Director of Public Prosecutions shall exercise State powers of prosecution and may

(a)      institute and undertake criminal proceedings against any person before any court (other than a court martial) in respect of any offence alleged to have been committed;

(b)      take over and continue any criminal proceedings commenced in any court (other than a court martial) that have been instituted or undertaken by another person or authority, with the permission of the person or authority; and

(c)       subject to clauses (7) and (8), discontinue at any stage before judgment is delivered any criminal proceedings instituted by the Director of Public Prosecutions or taken over by the Director of Public Prosecutions under paragraph (b).

(7)       If the discontinuance of any proceedings under clause (6)(c) takes place after the close of the prosecutions case, the defendant shall be acquitted.

(8)       The Director of Public Prosecutions may not discontinue a prosecution without the permission of the court.

(9)       The powers of the Director of Public Prosecutions may be exercised in person or by subordinate officers acting in accordance with general or special instructions.

(10)     The Director of Public Prosecutions shall not require the consent of any person or authority for the commencement of criminal proceedings and in the exercise of his or her powers or functions, shall not be under the direction or control of any person or authority.

(11)     In exercising the powers conferred by this Article, the Director of Public Prosecutions shall have regard to the public interest, the interests of the administration of justice and the need to prevent and avoid abuse of the legal process.

(12)     Parliament may enact legislation conferring powers of prosecution on authorities other than the Director of Public Prosecutions.

Held

1. The nolle prosequi had been entered by the Director of Public Prosecutions (DPP) pursuant to article 157(6)(c) and 159(9) of the Constitution of Kenya, 2010 (Constitution). The DPP was constitutionally mandated and granted the powers discontinue any criminal proceedings instituted by himself or taken over at any stage before judgment.
2. The independence of the office of DPP was guaranteed under article 157(10) of the Prosecutions. The DPP did not exercise absolute and unfettered authority in the exercise of his functions. Article 157(II) of the Constitution gave the caveat to the DPP on the conduct of his functions to have regard to the public interest, interests of the administration of justice and the need to prevent and avoid abuse of the legal process.
3. The DPP was required to satisfy the court that the nolle prosequi sought to be entered was in public interest, in the interest of administration of justice and was not an abuse of the process of the court. The nolle prosequi would fail and collapse were the DPP fail to satisfy the constitutional threshold.
4. The Victims Protection Act did not give any directions regarding how the right to the information was to be exercised or enjoyed or the format in which the information was to be given and neither did it give direction on the period of time within which the information had to be availed.
5. The DPP had power to recharge the accused person after a nolle prosequi. The significance of the nolle prosequi was that if the circumstances which led to the entry of the nolle prosequi remained the same, the accused would remain discharged of the offence until such a time there was prima facie evidence incriminating him of the offence.
6. A victim had a right to be informed in advance of the evidence the prosecution and defence intended to rely on and to have reasonable access to that evidence. The manifest purpose of the Victim Protection Act was to assist in the prosecution of cases but it also provided that victims were entitled to notice and information to the ongoing proceedings of the court. The decision not to prosecute had a direct correlation with the victims rights to compensation by the offender.
7. On entering of a nolle prosequi, the accused would stand discharged. They would not be acquitted of the charges. In effect, upon conclusion of the inquest as intended, the accused persons could still be charged with the offence and the victims would have and enjoy their rights as victims in the criminal proceedings.
8. The instant case was an old case filed over 3 years ago. It had however never commenced in terms of taking evidence. The DPP had not exercised its powers under article 157(1) and 157(9) of the Constitution as read with section 5(1)(b)(iii) of the Office of Director of Public Prosecutions Act in bad faith. The objections raised by the victims were accordingly dismissed. The court allowed the nolle prosequi entered by the DPP. The two accused persons were discharged.