1.Vide a letter dated March 23, 2022, the Director of Public Prosecution has requested this court to call for the trial court file herein Makindu Criminal Case No. 763 of 2019 – R –vs- Anthony Mwendwa to satisfy itself as to the correctness, legality and appropriateness of the orders issued by the magistrates court. The request was brought to this court to exercise its supervisory jurisdiction provided under sections 362 and 364 of the Criminal Procedure Code (Cap.75).
2.In the request, the Director of Public Prosecution informed this court that, on requesting the trial court to be granted permission to withdraw the criminal proceedings under section 87 (b) of the Criminal Procedure Code, the trial court on its own motion closed the prosecution’s case thus jumping into the litigation arena contrary to the rules of natural justice.
3.Having considered that request, I note that under Article 157 of the Constitution of Kenya, the powers to institute criminal proceedings is conferred on the Director of Public Prosecutions. The Director of Public Prosecutions may also take over criminal proceedings instituted by other persons or institutions.
4.With regard to discontinuance of criminal proceedings, the Director of Public Prosecutions has powers to discontinue criminal proceedings with the permission of the court. The Constitution in particular provides as follows -157(6)The Director of Public Prosecutions shall exercise State powers of prosecution and may –a.…b.…c.Subject to clause (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 prosecution case, the defendant shall be acquitted.8)The Director of Public Prosecutions may not discontinue a prosecution without the permission of the court.
5.In my view, it follows from the above Constitutional provisions that, once the Director of Public Prosecutions applies to the court to discontinue criminal proceedings, the court has only two options – either to permit the discontinuance of the criminal proceedings or decline the request.
6.In case the court permits the discontinuance of the proceedings, then it has two options, either to discharge the accused if the prosecution case has not been closed, or where the prosecution case has been closed to acquit the accused person.
7.In my view, the trial court has no powers or jurisdiction to close the prosecution case, as that is the function of the prosecution to do so.
8.Thus in my view, the suo-motu closure of the prosecution case by the trial magistrate herein, was an error and this court is entitled to review and correct that illegal order of the trial court. Under section 362 and 364 of the Criminal procedure Code (cap.75).
9.I thus review the trial court’s decision closing the prosecution case, and order that the trial court do proceed with the matter as provided for in the Constitution and the law, by either allowing or disallowing the request of the Director of Public Prosecutions to discontinue the criminal proceedings.
10.In case the trial court disallows the request of the Director of Public Prosecutions, the criminal case will proceed to hearing. In case the trial court allows the discontinuance, then the trial court can either discharge or acquit the accused person as provided by the Constitution.
11.To conclude, I set aside the orders of the trial court in closing the prosecution case suo-motu, and order that the trial court do proceed as provided for in the law and the Constitution, as stated in this ruling above.
12.I also order that the trial court file be returned forthwith to the trial court, to comply with the above orders. The matter will be mentioned by the trial court on November 8, 2022 for compliance with the orders herein.