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In Kenya, the right of private prosecution is essential to counteract the attempts by wealthy and influential people to stifle prosecutions when offences by them are alleged in reports to police”, Ruled Justice Simpson and Sachdev in Richard Kimani-vs-Nathan Kahara-1983.

It was not until 1989, in a judgment of immense discredit, that the right of private prosecution in Kenya was put in doubt. Three judges of appeal, the late Nyarangi, Platt and the immediate former Chief Justice Apaloo, stated that no right of private prosecution exists under the Constitution of Kenya. According to the judges, only the Attorney-General has the right to institute criminal proceeding in Kenya.

This judgment contradicted and indeed seemed to over-ride that delivered by Justice Simpson and Sachdev in Richard Kimani-vs-Nathan Kahara. In this later case, the two judges in fact categorically stated that “the right of private prosecution is a constitutional safeguard”. Quoting constitutional safeguard against capricious, corrupt or biased failure or refusal of Police Force and the office of Director of Public Prosecutions to prosecute offenders against the Criminal Law. The two judges were in no doubt about the recognition of this right under the Kenya Constitution.

In between these two legal positions, Kenya has gone through interesting experiences on private prosecutions. Recently, Opposition Members of Parliament have attempted to bring private prosecutions against personalities alleged to have committed crimes against the public. The right of private prosecutions in Kenya is based on the Criminal Procedure Code which provides the method in which a private person may institute criminal proceedings against another. The private prosecutor has to make a complaint to a magistrate stating the offences he alleges has been committed and the ground upon which he makes the allegation.

If the magistrate is convinced that an offence is disclosed, he then issues summons requiring the accused person to appear before him and upon the appearance charges the person with offence. The private prosecutor may then be allowed by the magistrate to conduct the case personally or through an advocate.

The judges in the Nathan Kahara case made relevant observations in respect of this procedure. Firstly, they stated that the magistrate should question the applicant to ascertain whether a report has been made to the Attorney-General or to the police and with what result. If no such report has been made the magistrate may either adjourn the matter to enable the report to be made and a decision thereon reached, or in case of a simpler matter allow the prosecution and notify the police of that fact.

Secondly, the court noted that permission to prosecute can only be granted after the accused has obeyed the summons and been charged. The magistrate has no jurisdiction to grant or refuse permission to prosecute if the accused is not before the court. “If in the absence of the accused person permission is purportedly granted to a private prosecutor to conduct a prosecution,” the court said, “the power to grant permission cannot be taken to have been exercised by a magistrate trying the case.”

The right given to the private prosecutor, however, could conflict with the powers of the Attorney-General. The Constitution of Kenya vests in the Attorney-General the power to institute and undertake criminal proceedings against any person and further empowers him to take over, continue or discontinue any criminal proceedings at any stage he considers desirous, whether these proceedings have been instituted by him or any person.

While the Constitution recognised that criminal prosecutions may be instituted by a person other than the Attorney-General it clarifies that the powers of the Attorney-General are to be vested in him to the exclusion of any other person. From the wording of the Constitution, there can be no reasonable doubt as to the powers of the Attorney-General in respect of private prosecutions. He can take them over and continue with them or discontinue them if “he considers it desirable”.

Many of the courts that have been called upon to rule on the powers of the Attorney-General in various legal jurisdictions have upheld their ultimate control over all criminal legal proceedings. The English House of Lords, while recognising the right of private prosecution, has stated that such right is “ultimately liable to be controlled by the Attorney-General by taking over the prosecution and, if he thinks fit, entering a nolle prosequi. He merely has to sign a piece of paper saying that he does not wish the prosecution to continue. He needs not to give reason…In the exercise of these powers he is not subject to direction by his ministerial colleagues or to control and supervision by the courts.”

In case of a private prosecution, however, this power can only be exercised after the accused is charged. In the Nathan Kahara case, the Deputy Public Prosecutor has applied to take over the proceedings, which application was allowed by the Chief Magistrate. He then entered a nolle prosequi. The judges held that ‘THE Chief Magistrate erred in dismissing the charges and discharging the accused at the request of Mr. Chunga on the ground that the Attorney-General has ultimate and undisputed control over all prosecution”.