High Court rules DPP cannot withdraw cases without court permission

High Court Judge Nixon Sifuna Wanyama. [David Gichuru, Standard]

The power to declare an accused person innocent and or guilty lies with the court, High Court has ruled.

High Court Judge Nixon Sifuna in a ruling on an application by an accused person, Josephat Kipkoech Sirma said it is not for the prosecutors to declare an accused person innocent.

Sirma had appealed a decision by a magistrate court declining to allow an application by the Office of the Director of Public Prosecutions to withdraw charges against him. Sirma and two others were charged with corruption at the Nairobi Chief Magistrate's Court Anti-Corruption.

Senior Principal Magistrate Victor Wakumile had rejected the application by the DPP to have Sirma discharged and leave the other two on the hook.

Aggrieved by the said ruling Sirma applied, urging the Court to review and set aside the said ruling and substitute it with an order allowing the withdrawal.

He stated that the trial court did not exercise its discretion judiciously and that there was no compelling reason to have declined to allow application by the prosecution.

Sirma said the DPP is entitled to withdraw charges against an accused person at any stage before judgment is pronounced adding that the court cannot direct who to prosecute and who not to prosecute.

In the application, Sirma named the DPP as the respondent. The DPP did not oppose the application.

The court in the ruling noted that the DPP having said he was not opposing the application passively participated through routine attendance of court sessions without filing submissions.

The judge in the ruling pointed out that after August 2010 when the Kenya Constitution was promulgated, no criminal cases may be withdrawn without the permission of the court in which the case is proceeding.

"Therefore, when it comes to a decision whether or not to allow the prosecution to terminate the case or withdraw and or drop charges against an accused person, that is within the discretion of the trial court. Which discretion being judicial discretion needs to be exercised judiciously and in a manner that is neither illegal, unconstitutional, capricious, whimsical, irrational, arbitrary, absurd, or violates the right to fair trial of the accused or his co-accused if it is a composite trial," stated the judge.

The judge said the trial court, in declining to allow the prosecution's request or application to with the case or drop charges against an accused person, must give reasons for declining, not merely or generally declining.

"In charges based on conspiracy and common intention, the cases against the co-accused are conjoined at the hip, and therefore neither separable nor severable through the legal process. In these cases, co-accused persons being so conjoined cannot by prosecutorial craft or craftsman be separated or severed in a medical surgery fashion," further stated the judge.

The judge said the "excise and abandon" practice where prosecutors sever co-accused and earmark their cases for abandonment of charges, should be desisted from.

"The DPP having supposedly based his decision to prosecute, on findings and evidence from prior investigation, is bound by that decision and cannot with caprice or whim suddenly just disown his decision and drop the charges," read the ruling by Judge Sifuna.

He added: "After all criminal charges should be preceded by investigations, and shall only follow after investigations are completed, and shall be based only on the findings of such investigations."

The prosecution's isolation for withdrawal, charges against Sirma the court said was made so late in the proceedings after 23 witnesses had already testified. He questioned what happens to the testimonials that have implicated or will implicate him if the charges against him are to be dropped at that stage of the case.

"The reason the prosecution gave for the ODPP's Application to withdraw the charges was against the Applicant was that upon evaluating the evidence against him, they found it weak.

To this my answer is that the task of analysing evidence adduced in a case and finally pronouncing whether the accused is guilty or innocent belongs to the court itself (the judicial officer presiding at the trial), and not the parties or their litigators," stated the judge.

The prosecution the judge said should present the evidence it has (both inculpatory and exculpatory), and let the court decide.

"It is not for the prosecutor to declare the accused innocent. Such a declaration is unacceptable and extra-judicial, a mutinous change of roles, as well as an excess and usurpation of jurisdiction. It is the trial magistrate that will on the date of judgment or ruling on "no- case-to-answer", absolve the accused or any of them of wrongdoing," he stated.

He noted that the practice of dropping charges, especially in terminal withdrawals is increasing gaining notoriety and becoming fashionable in Kenya's prosecutors and the practice must be dealt with.

The judge said the practice is not only unorthodox but also a vice that prosecutors need to urgently start disabusing themselves of.

The judge maintained that the trial court in Sirma's case was right in refusing to allow the withdrawal application by the DPP on Sirma's case.

'That refusal was not only merited: and rational, but is also a constitutionally mandated discretion. The same is hereby upheld, and this revision application is dismissed accordingly," ruled the judge.