On Tuesday, December 14, the Magistrate’s Court in Nairobi allowed the withdrawal of attempted murder charge against Embakasi East Member of Parliament Babu Owino.

As the news broke, and spread fast on social media, the lawmaker’s name and that of his alleged victim, DJ Evolve, whose real name is Felix Orinda, shot to the summit of Twitter trends.

Kenyans could not understand why, a suspect allegedly caught on tape shooting his victim, could be extricated from prosecution.

Those found guilty of attempted murder, as per the Kenyan law, risk spending the rest of their lives in jail. The crime, just like murder, robbery with violence and rape, is a capital offence.

While letting Babu Owino off the hook on Tuesday, Milimani Principal Magistrate Bernard Ochoi said: “I have come to the conclusion that this is a matter [in which] a court should encourage reconciliation as envisaged in the Constitution, and, therefore, I will allow the request to withdraw the charges against the accused in attempted murder charge. He is acquitted.”

As furore mounted, and debate brewed, the recurrent question on several comments, was: “can a criminal case, which has the State as the suing authority, be withdrawn, without the matter going the full prosecution length?”

“I thought it’s only in civil suits that cases can be withdrawn when the parties enter an out-of-court agreement?” posed a user on Facebook, when Standard Digital shared news of Babu’s “acquittal” in Evolve shooting saga.

Both the law and lawyers agree that, yes, it’s possible for criminal cases against suspects to be withdrawn.

The law says a criminal case may be terminated by reconciliation (Section 176 of the Criminal Procedure Code), withdrawal or discontinuance of the charge by the complainant or prosecutor (Section 204 of the CPC, or Article 157, Part 6C) or alternative dispute resolution agreement. (Article 159, Part 2C).

Senior Counsel Kioko Kilukumi says “some of these criminal case withdrawals are complex”.

“In all criminal cases, the charge sheet would read the State or the Republic versus the accused; it can’t read the name of the complainant (victim) versus the accused, as it would in civil cases. And this is because the crime allegedly committed by the accused is treated as a crime against the society, and not an individual. Ideally, the prosecution of these crimes should be pursued to conclusion, but again, being human beings, there are certain realities we can’t ignore,” Kilukumi told The Standard.

“In most criminal cases, the complainant (victim) would be the star witness. However, he or she can jeopardise prosecution when they say they ‘can’t remember what happened, or when they refuse to take the witness stand. Remember, a judge’s ruling will always be based on evidence, concrete one for that matter. So, when the complainant fails to cooperate, then chances of that case failing would be high."

“In the Republic versus Babu Owino case, the complainant was DJ Evolve. He (DJ Evolve) had expressed disinterest in pursuing the matter to conclusion, hence the withdrawal notice. That ideally would mean, the prosecution suffers a major blow because the star witness they’d wish to rely on, would have bailed out on them.

“However, the DJ Evolve case had strong supporting evidences, that even in the absence of the star witness’s testimony, the case could still proceed to determination. For instance, there were CCTV recordings, patrons at the nightclub where the shooting occurred, staff members, and many more. So, in that matter, with or without the complainant, the prosecution could still prove its case; the prosecutor could not tell the magistrate that ‘without the complainant’s evidence, the case can’t continue.”

Kilukumi said that the parties, however, still had alternative dispute resolution avenues, which the court could entertain if persuaded.

“Alternative dispute resolution mechanisms in criminal cases are called diversionary; they allow you to divert from formal criminal trials to alternative dispute resolution methods. However, most diversionary mechanisms, such as deferred prosecution agreements or non-prosecution agreements are used by corporate companies, and not when resolving violent crimes. In these mechanisms, the prosecution can seek to have criminal cases against the said-firms settled out of court. For instance, the company would be told, before formal prosecution kicks off, it won’t be charged in court if it does one, two or three things. These may include returning stolen funds, paying accrued taxes etc.”

Kilukumi says that for the option of reconciling – an alternative method of dispute resolution – to be adopted, the complainant has to formally write to the prosecutor that he or she wishes to withdraw their pursuit of the case. If satisfied with the reasons given, the prosecutor then notifies the judge or magistrate that the complainant wants the case dropped.

It would now be upon the magistrate or judge to accept or reject the withdrawal application. DJ Evolve filed his notice of withdrawal on September 21, 2020, eight months after the shooting incident.

“It’s up to the prosecuting authority or the court to give approval to that reconciliation [attempt]. If the nature of the crime is not suitable for reconciliation, then the prosecution or the courts won’t give their approval for the matter to be withdrawn,” he said.

The prosecution could decide to forward the complainant’s request for the case to be withdrawn if it, among other reasons, feels that the accused has already suffered enough punishment.

“Take an example where you are drunk, and decide to drive your family home. On the way, you are involved in a car crash, which kills all your family members, minus only you. The DPP would probably ask: ‘has this man not suffered enough [damage] already?’ By losing your family members, you’d have already received the greatest form of punishment, and subjecting you two years in jail would be akin to overkill.”

“Must the DPP always prosecute, even when there’s evidence that the accused has suffered enough damage?” he posed.

On the State or Republic versus Babu Owino case, Kilukumi said probably the MP had shown remorse, and there was evidence he’d suffered enough “punishment” to warrant the withdrawal of attempted murder charge against him.

“There is evidence suggesting he was paying Evolve’s medical bills, and that he’d taken responsibility for his well-being, including compensating the victim, like he would in a civil suit,” said the senior counsel.

Kilukumi, however, expressed concern with the use of the word “acquitted” in the magistrate’s decision, which saw Owino walk out of the case unprosecuted.

“The Constitution, which is the supreme law, says you cannot acquit when prosecution process has not been completed. In the Babu Owino case, the trial hadn’t gone full length; he’d only been charged, and the witnesses were yet to take the stand. Acquittal means, that the case was closed, and that the DPP cannot now return to court seeking to charge Babu Owino with the same facts and evidence. What the magistrate did is called a discharge, and he, therefore, erred in saying he’d acquitted Babu Owino.

“Unlike acquittal, in a discharge, the DPP can return to court with the same facts, but with additional evidence to have the matter pursued afresh. Now that the magistrate said he’d acquitted Babu Owino, the DPP can go to the High Court to have the word ‘acquitted’ deleted in the ruling, and replaced with the ‘matter is discharged’, so that a window to revive the matter in future is given, should the complainant change his mind.”

Lawyer Ken Echesa says the 20210 Constitution has made it hard for the prosecution to drop charges against crime suspects, unlike in previous constitutional dispensations.

“Before the 2010 Constitution was promulgated, the AG or the DPP could drop charges against accused people without giving the court any reasons. However, the new Constitution stipulated the process of seeking to have a criminal case withdrawn,” said Echesa.

The lawyer, in agreement with Kilukumi, said the complainant has to initiate the withdrawal of a case. When the DPP is convinced that the reasons for withdrawal are weighty, then he or she presents the notice of withdrawal to the court, which then ratifies or rejects the application. The buck stops with the courts.

“The prosecution must really give good reasons for withdrawing the case,” he said.

“The factors considered when ratifying or rejecting a withdrawal application include the gravity of the crime and the relationship between the complainant and the accused. For instance, if it’s a mother-son relationship, and the mother seeks to reconcile with the son, consequently bringing to an end the prosecution process, the courts are likely to allow that application, given the close nature of their relationship.”

The friend-friend relationship between Babu Owino and DJ Evolve could have contributed to Magistrate Ochoi sealing the withdrawal application, observed Echesa.

The lawyer, however, says he is puzzled by the prosecution’s acceptance of withdrawal notice by DJ Evolve, saying attempted murder is a capital offence that shouldn’t be allowed to be resolved outside court.

“The prosecution did not act appropriately. An attempted murder case is one where the public has a stake. This ruling sets a bad precedent, as that would mean that if you are in a position to harm someone, and then use money to buy his or her forgiveness, then you’d easily walk freely in this country. The case should have gone all the way to determination so that it serves as a deterrent lesson to those who would wish to commit such offences,” he said.

Senior Counsel Kioko Kilukumi, however, observes that the circumstances that led to the shooting could have assisted in Babu Owino extrication.

“These were friends. A tiff arose, probably when they were drunk. Had it been proven that Babu Owino planned in advance to shoot DJ Evolve, then probably the withdrawal application would have been rejected,” he said, adding: “Circumstances [surrounding a criminal matter] will always dictate how the DPP behaves.”

Withdrawal of criminal cases: the law

In cases of common assault, or any other offence of a personal or private nature not amounting to felony, and not aggravated in degree, section 176 of the Criminal Procedure Code (CPC) allows the court to promote reconciliation, encourage and facilitate the settlement, in an amicable way, of proceedings, on terms of payment of compensation or other terms approved by the court.

In accordance with section 204 of the CPC, a complainant may withdraw the complaint before the court makes a final order in the matter and the court has discretion as to whether to allow or reject the withdrawal when satisfied of existence or otherwise of sufficient grounds for permitting such a withdrawal. 

The DPP is obliged to consider “public interest, the interests of the administration of justice and the need to prevent and avoid abuse of the legal process” before accepting to withdraw or terminate a criminal case.

It must be demonstrated by the accused or the prosecutor, who seeks the withdrawal or termination of a criminal case, that in the wording of the Constitution, the discontinuance (settlement, withdrawal or termination of the criminal case) is justifiable under the parameters of the considerations of public interest, interests of justice and need to prevent abuse of the legal process.

Babu Owino was allegedly caught on tape shooting DJ Evolve in the neck on February 17, 2020, following what appeared to be a tiff between them at B-Club nightspot in Kilimani, Nairobi.

Following the withdrawal of attempted murder charge that he was facing, Owino will now face a disorderly behaviour charge, a less serious one.

As part of conditions for the withdrawal, the MP will buy DJ Evolve an apartment to ease the rent burden; Owino will also take care of the deejay’s medical bills, until he fully recovers.