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Withdrawal from prosecution in Kenya

Introduction

In criminology, an offence done by a person is never against any particular individual but against the whole society (state). Therefore in the criminal matters, the state itself is a party. The prosecution of criminal cases is conducted by the Public Prosecutor. The Criminal Procedure Code enables the Public Prosecutor to withdraw from the prosecution of any person either generally or in respect of any one or more of the offences for which he is tried.[1] With regard to the procedure for withdrawal, ‘Court’ means Trial Court, not Appellate Court and also prosecution is made before a trial Court. So, the Public Prosecutor cannot move an application for withdrawal from the prosecution before an Appellate Court.[2]The procedure for doing so is discussed here under.

Legal Framework

Except in cases where criminal charges are terminated by operation of the law where upon; death of an accused, there is no person to be tried, convicted and sentenced in a trial, there are ways upon which a criminal charge may be terminated by act of the parties, and it is opportune to discuss the principles involved. A criminal case may be terminated by act of the parties, by;

1. Withdrawal or discontinuance of the charge by the complainant or the prosecutor

Art. 157 (6) (c) of the Constitution which states that; “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 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’s case, the defendant shall be acquitted.

(8) The Director of Public Prosecutions may not discontinue a prosecution without the permission of the court.” According to s. 87 of the CPC it is stated that;” In a trial before a subordinate court a public prosecutor may, with the consent of the court or on the instructions of the Director of Public Prosecutions, at any time before judgment is pronounced, withdraw from the prosecution of any person, and upon withdrawal—

(a) if it is made before the accused person is called upon to make his defence, he shall be discharged, but discharge of an accused person shall not operate as a bar to subsequent proceedings against him on account of the same facts;

(b) if it is made after the accused person is called upon to make his defence, he shall be acquitted.”

Section 202 of the CPC provides; “If, in a case which a subordinate court has jurisdiction to hear and determine, the accused person appears in obedience to the summons served upon him at the time and place appointed in the summons for the hearing of the case, or is brought before the court under arrest, then, if the complainant, having had notice of the time and place appointed for the hearing of the charge, does not appear, the court shall thereupon acquit the accused, unless for some reason it thinks it proper to adjourn the hearing of the case until some other date, upon such terms as it thinks fit, in which event it may, pending the adjourned hearing, either admit the accused to bail or remand him to prison, or take security for his appearance as the court thinks fit. “ This is where the complainant fails to attend.[3]

2. Alternative dispute resolution agreement.

Pursuant to Article 159 (2) (c) of the Constitution which states that; “In exercising judicial authority, the courts and tribunals shall be guided by the following principles—(c) alternative forms of dispute resolution including reconciliation.

Reconciliation under section 176 of the Criminal Procedure Code (CPC) states that;

“In all cases the court may promote reconciliation and encourage and facilitate the settlement in an amicable way of proceedings for common assault, or for any other offence of a personal or private nature not amounting to felony, and not aggravated in degree, on terms of payment of compensation or other terms approved by the court, and may thereupon order the proceedings to be stayed or terminated’’

The High Court in Mary Kinyua Rukwaru –v- Office of the Director of Public Prosecution & another [2016] eKLR analysed the concept of withdrawal from prosecution on the ground of reconciliation and summerised thus: ‘…the process of reconciliation … should be done in accordance with Article 159 of the Constitution. Section 137A (1), (b) & (2) of the Criminal Procedure Code Cap 75 Laws of Kenya and section 15(1), (2) & (3) of the Victim Protection Act to be rendered proper and duly enforceable by Court.’

Section 15 of the Victim Protection Act reads:

‘‘15. (1) A victim has a right to restorative justice. ‘

(2) Where the victim elects to participate in any process towards restorative justice, the process shall proceed on condition that-

(a) The participation of the offender shall not prejudice any of the offender's rights under any law or be deemed as evidence of admission or proof of guilt in respect of the offence complained of;

(b) Any of the parties may withdraw their participation to the process at any time;

(c) Where a process for restorative justice fails, the criminal trial of the offender shall proceed to final determination, but without prejudice to the right of the victim to seek appropriate relief in civil proceedings; and

(d) The process towards restorative justice does not violate the provisions of Article 159(3) of the Constitution.

(3) Any agreement for restoration or other redress agreed between the victim and the offender shall be recorded and enforced as an order of the Court and may be enforced as a decree of the Court.’’

The Role of the Prosecutor

Pursuant to Sec 87 of the CPC as stated above, The Public Prosecutor in charge of a case may, with the consent of the Court, at any time before the Judgment is pronounced, withdraw from the prosecution of any person either generally or in respect of any one or more of the offences for which he is tried and upon such withdrawal;

(a) If it is made before the accused person makes his defence, the accused shall be discharged in respect of such offence or offences:

(b) If it is made after the accused person is called upon to make his defence, he shall be acquitted in respect of such offence or offences:[4]

The High Court at Kabarnet in Kelly Kases Bunjika v Director of Public Prosecutions (DPP) & another [2018] eKLR opined that the mandate of Article 157 of the Constitution as stated above is that only the DPP can discharge and, consequently, his involvement in any proposed compromise in criminal cases is indispensable.

This power to withdraw from the prosecution is not an unfettered or unrestricted power because it can be enforced only "with the consent of the Court". In any case if the Court does not give its consent to the withdrawal from the prosecution, the Public Prosecutor cannot withdraw it.

In the case of Rajender Kumar Vs. State through Special Police Establishment, (1980) 3SCC 435 the Supreme Court in India has held that "It shall be the duty of the Public Prosecutor to inform the grounds for withdrawal to the Court and it shall be the duty of the Court to appraise itself of the reasons which prompt the Public Prosecutor to withdraw from the prosecution. The Court has a responsibility and a stake in the administration of criminal justice and so has the Public Prosecutor, its ‘Minister of Justice’. Both have a duty to protect the administration of Criminal justice against possible abuse or misuse by the Executive. The independence of the judiciary requires that once the case has travelled to the Court, the Court and its officers alone must have control over the case and decide what is to be done in each case.”[5]

Therefore, the role of the prosecutor is to apply his mind to the facts of the case independently, without being subject to any outside influence and to act objectively as he is an officer of the court. The court on the other hand, cannot give consent to withdraw without satisfying itself on the materials placed before it, that the grant of it would sub-serve administration of Justice and that permission was not being sought covertly, with an ulterior purpose unconnected with the vindication of the law.

However, this section gives no indication as to the grounds on which the court is to grant its consent.

Reasons Before Consent is Given

It is to be noted that no straight jacket formula has been evolved to give quietus to the controversy for the court to grant consent.

Lord Denning MR. in Breen v. Amalgamated Engineering Union 'observed that the giving of reasons is one of the fundamentals of good administration. In Alexander Machinery (Dudley) Ltd. v Crabtree '' it was observed that failure to give reasons amounts to denial of justice. Reasons are live links between the mind of the decision-taker to the controversy in question and the decision or conclusion arrived at. Reasons substitute subjectivity by objectivity. The emphasis on recording reasons is that if the decision reveals the inscrutable face of the sphinx, it can, by its silence, render it virtually impossible for the Courts to perform their appellate function or exercise the power of judicial review in adjudging the validity of the decision. Right to reason is an indispensable part of a sound judicial system; reasons at least sufficient to indicate an application of mind to the matter before Court. Another rationale is that the affected party can know why the decision has gone against him. One of the salutary requirements of' natural justice is spelling out reasons for the order made; in other words, a speaking out. The "inscrutable face of a sphinx" is ordinarily incongruous with a judicial or quasi-judicial performance.[6]

The grounds for withdrawal will therefore depend on the special circumstances of each case. In summary, the grounds for withdrawal of a criminal case from the trial court in Kenya include but not limited to:

1. Alternative Dispute Resolution.

2. lack of prospect of successful prosecution in the light of evidence,

3. Implication of persons as a result of political and personal vendetta,

4. Inexpediency of the prosecution for reasons of State and public policy, and

5. Adverse effects that the continuance of the prosecution will bring to the public interest in the light of the changed situation.

Conclusion

The Public Prosecutors will do well to bear in mind that to allow the continuation of the prosecution to reach its normal end is the rule and withdrawal is an exception to that rule which could be resorted to very sparingly lest the confidence of the public in the efficacy of the administration of justice be shaken.[7]

[1] WITHDRAWAL FROM PROSECUTION (Section 321 of the Cr.P.C.), Ashutosh Kumar Misra*


[2] WITHDRAWAL FROM PROSECUTION (Section 321 of the Cr.P.C.), Ashutosh Kumar Misra*


[3] Kelly Kases Bunjika v Director of Public Prosecutions (DPP) & another [2018] eKLR


[4] Chapter - IV WITHDRAWAL FROM PROSECUTION - ROLE OF PUBLIC PROSECUTOR


[5] Chapter - IV WITHDRAWAL FROM PROSECUTION - ROLE OF PUBLIC PROSECUTOR


[6] Chapter - IV WITHDRAWAL FROM PROSECUTION - ROLE OF PUBLIC PROSECUTOR


[7] WITHDRAWAL FROM PROSECUTION (Section 321 of the Cr.P.C.), Ashutosh Kumar Misra*



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