1.John Gitau Mary, the Accused, was arraigned in court on March 22, 2022 following allegations of having contravened the provisions of Section 203 as read with Section 204 of the Penal Code, information that he denied.
2.On the May 24, 2022, the Director of Public Prosecutions(DPP) through learned Counsel Mr. Okeyo filed a Nolle Prosequi seeking to discontinue the criminal charges against the accused pursuant to the provisions of Article 157 (6) (c) (9) of the Constitution, an application that is vehemently opposed.
3.The intention to terminate the charge against the accused is based on grounds that the accused is a Kenya Defence Forces (KDF) officer and major witnesses in the matter are from KDF. That according to the provisions of Section 133 of the KDF Act the matter falls under the jurisdiction of the Court Martial as the deceased was an army officer just like the accused.
4.The application by the DPP is contested. It is argued by learned Counsel for the defence, Mr. Musyoki that the case can only be withdrawn with the permission of the court and after satisfactory reasons are given. He argued that Section 133 of the KDF Act empowers the Court Martial to hear and determine civilian offences but the same law under Section 56 of the Act prohibits the Court Martial to interfere with civil offences where civil courts have jurisdiction.
5.That Section 3, 4 and 5 (2) and schedule 1 of the Criminal Procedure Code vests the High Court with jurisdiction to determine the case of murder. That the Court Martial is silent on the jurisdiction of the Presiding Officer and the qualifications, and, that Section 133 of the KDF Act is in conflict with Section 56 of the Act.
6.He concluded by arguing that the accused would not enjoy the benefit of his constitutional rights under Article 50 of the Constitution as the KDF Act does not provide for bond/bail.
7.In a rejoinder Mr. Okeyo argues that the Court Martial is seized of jurisdiction to determine the matter.
8.I have duly considered rival arguments by both Counsels. The State through the DPP has notified this court of the intention to terminate the case. Special powers granted to the DPP to terminate a suit as provided by the basic principles and laws of the State are provided for in Article 157 (6) (7) (8)of the Constitution as follows:
9.Following the discretion granted to Parliament by Article 157 (12) of the Constitution, it enacted the Office of Director of Public Prosecutions Act (ODPP Act) which gives effect to Article 157 of the Constitution and for associated/related purposes.Section 25 (1) of the ODPP Act provides that:
10.In exercise of its discretion pursuant to the constitutional mandate to terminate these proceedings the DPP sought leave based on the fact that the accused will be indicted again but before the Court Martial.
11.It is not in dispute that the accused is an officer commissioned in the Defence Forces based at Embakasi Garrison – Nairobi. Further, no argument has been raised to counter the fact of the deceased having been an officer in the service of the Defence Forces. Section 133 (1) of the Kenya Defence Forces Act (Act) provides that:
12.A Civil Court is defined by the KDF Act as any court of ordinary criminal jurisdiction. A civil offence is defined by the Act to include offences committed under some written law other than the Act or an act or omission which if committed in Kenya would constitute an offence. The offence of murder is deemed to be an act or omission that offends the law as provided by the Penal Code, a written law contemplated under Section 2 and 133 of the KDF Act. The Act therefore expressly grants the Court Martial jurisdiction to determine murder charges and Section 133 (1) (a) of the Act is clear on that fact such that it does not leave room for doubt.
13.It is argued that Section 133 is in conflict with Section 56 of the KDF Act. Section 56 of the Act states that :Section 211 of the KDF Act provides thus:
14.According to Section 5(2) of the Criminal Procedure Code (Code) as read with the 1st schedule to the Code, the offence of murder is triable by the High Court. But, Section 5(1) of the Code is also clear it provides thus:
15.In the instant case the fundamental issue is the fact of parties herein, the victim and accused having been people serving in the Military. The court best placed to hear the matter would be the Court Martial.
16.It is urged that the jurisdiction of the Court Martial is silent on the jurisdiction of the Presiding Officer and qualifications. Section 160 (1) of the KDF Act provides thus:
17.The Judge/Advocate is a Magistrate or an advocate of not less than ten years standing.
18.It is expressed that the accused is apprehensive of not having a fair trial as envisaged in Article 50 of the Constitution and in particular the question of bail which is subject to the law that is very clear. Section 42 of the KDF Act provides that:
19.The question I should therefore grapple with is whether the DPP has acted in the interest of justice and in good faith?. With that in mind I must bring to my mind the fact of the DPP having the mandate to exercise the power. This is a matter where witnesses have not been availed to testify, therefore a question of witnesses being recalled to testify will not arise.
20.Following the provisions of the law, the court must be bound by tenets of fair trial which include not limiting the rights as espoused in Article 50 of the Constitution. It has therefore not been demonstrated that the application has been made in bad faith and/or following abuse of prosecutorial powers.
21.In the result, the proceedings against the accused for the offence of murder contrary to Section 203 as read with Section 204 of the Penal Code be and are hereby terminated pursuant to the provisions of Article 157 (6) (c) and (9) of the Constitution. Accordingly, the accused is discharged.
22.It is so ordered.