PRIVATE PROSECUTION

INTRODUCTION

The general procedure for prosecution is through the office of the Director of Public
Prosecution (DPP).1 The Office of the Director of Public Prosecution Act, 2013, however,
enumerates at least two ways in which prosecution can be carried out in Kenya. That is; 2

i. Prosecution as a constitutional mandate of the office of the Director of Public

Prosecution.
ii. Prosecution by a private person in circumstances where prosecution by the Director of
Public Prosecution is not exercised or is unlikely to be exercised.
PRIVATE PROSECUTION

Private prosecution happens when any person, other than a public prosecutor or a police officer
who has reasonable and probable cause to believe that an offence has been committed by any
person makes a complaint of the alleged offence to the magistrate who has jurisdiction to try
or inquire into the alleged offence, or within the local limits of whose jurisdiction the accused
is alleged to reside or be.3 The power of private prosecution is undoubtedly right and necessary
in that it enables citizens to bring even the police or the government officials or cronies of DPP
before the criminal courts when they commit wrongs against citizens and the DPP or
government is unwilling to make the first move.4 This, however, is not without statutory and
legal mechanisms to ensure that the independence of the office of the Director of Public
Prosecution is not prejudiced.5

1The Office of the Director of Public Prosecution Act, 2013; Also, see Constitution Article 157(6)
2 Ibid, Sections 28 & 57
3Supra, note 14; Pp. 80-81; Also, see Supra, Note 4; Section 88.
4Ibid, Pp. 81; Also, see Supra, Note 11; p.66; Also see Gouriet V. Union Workers [1977] 3 All ER 70

where Lord Wilberforce stated, “Enforcement of the law means that any person who commits the
relevant offence is prosecuted. So, it is the duty… of the director of public prosecutions or of the
attorney general, to take steps to enforce the law in this way. failure to do so, without good cause, is a
breach of their duty… the individual, in such situations, who wishes to see the law enforced has a
remedy of his own: he can bring a private prosecution...this historical right which goes right back to
the earlier days of our legal system, though rarely exercised in relation to indictable offences, and
though ultimately liable to be controlled by the attorney-general (by taking over the prosecution and,
if he thinks fit, entering a nolle prosequi) remains a valuable constitutional safeguard against inertia or
partiality on the part of authority.Also see Richard Kimani V. Nathan Kahara where it established
that; The state is unwilling to prosecute or There is a real apprehension or fear of official lethargy,
corruption or bias.
5 Supra, Note21, Pp. 84

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Private prosecutions do not extend to serious criminal matters or where limited private interests
are involved as set out in the case of Gregory and Another v. Republic thro’ Nottingham
and two others.6

Any person conducting the prosecution may do so personally or by an advocate.7

PROCESS OF PRIVATE PROSECUTION

Step 1

Any person who institutes private prosecution shall, within thirty days of instituting such
proceeding, notify the Director in writing of such prosecution.8

In the Floriculture International Limited and Others9 case Kuloba J. stated that criminal
proceedings at the instance of a private person shall be allowed to start or to be maintained by
the private prosecutor if:

1. The complainant has exhausted public machinery of prosecution before embarking on

it himself;
2. The Attorney General or other public prosecutor seized of the complaint has declined
to institute criminal proceedings;
3. The refusal by the state agencies to prosecute is without reasonable cause and there is
no good reason that a prosecution should not be undertaken;
4. The suspect is not prosecuted at that point in time there is likely to be a failure in public
and private justice
5. There is basis for the locus standi, such as, that he has suffered special, exceptional and
substantial injury peculiarly personal to him and that he is not motivated by malice,
politics or ulterior considerations;
6. There exist demonstrable grounds for believing that a grave social evil is being allowed
to flourish unchecked.

6 [2004] 1 KLR 547; where it was stated that, “…although criminal prosecutions may be commenced
by a person other than the Attorney General, such occasions must be few and limited and even when
they come to pass, the Attorney General’s authority remains entirely uncompromised and he can at
his own discretion take over the case in question…”
7 Supra, Note 1, Section 88(3)
8 Supra, Note 38, Section 28(2)
9Floriculture International Limited and Others, [High Court Misc. Civil Application No. 114 of 1997],

Kuloba, J.; Also see Richard Kimani V. Nathan Kahara where it established that; The state is unwilling
to prosecute or There is a real apprehension or fear of official lethargy, corruption or bias.

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Step 2

Permission ought to be sought before initiating private prosecution proceedings. Therefore,

leave must be sought under section 88 (1) of the Criminal Procedure Code from a magistrate
to conduct a private prosecution. In the case of Otieno Clifford Richard V. Republic High
Court at Nairobi the court observed as follows with regards to leave to carry out private
prosecution;

“Section 85 to Section 88 of the Criminal Procedure Code deal with

‘Appointment of public prosecutors and conduct of prosecution’. On the other
hand, Section 89 to Section 90 of the Criminal Procedure Code deal with the
‘Institution of proceedings and making of complaint’. We think that in the case
of a private prosecution an application must first be made under Section 88(1)
of the Criminal Procedure Code for the Magistrate trying the case to grant or
refuse to grant permission to the Plaintiff to conduct a private prosecution. It is
after permission has been granted for the private prosecution to be conducted,
that Section 89 and Section 90 of the Criminal Procedure Code can be brought
into effect and the criminal proceedings instituted. We believe that the
principles set out in the KAHARA CASE at page 89 are good law and provide
guidance to a subordinate court when determining the question whether to allow
a private prosecution since it spells out certain issues which must be addressed
by the court when considering the application for permission to private
prosecute before granting it.”10

Unlike in the former Constitution, the Director of Public Prosecution can only take over a
private prosecution, with the permission or authority of the person undertaking such
prosecution. In relation to the discontinuation or termination of prosecution, the Director of
Public Prosecution cannot terminate or discontinue any prosecution without the permission of
the Court.11 If or when the Director of Public Prosecution takes over proceedings, they become
public prosecution.

10Otieno Clifford Richard V. Republic High Court at Nairobi (Nairobi Law Courts) Misc. Civil Suit
No. 720 of 2005.
11 Supra, Note 13; Article 157(6) (b) and Article 157(8)

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However, the court has in the post 2010 Constitution continued to hold that despite the changes,
the procedure for instituting private prosecution remains unchanged. In Isaac Aluoch Polo
Aluochier V. Stephen Kalonzo Musyoka the court stated;

“I believe that the law and judicial precedent with regard to the extent and
circumstances under which a private person may institute criminal prosecutions against
another as was in force under the former Constitution is still applicable today. I do not
believe that a private citizen can wake up one morning and decide that a fellow citizen
has committed an offence, and that he is entitled as of right to bring a private
prosecution against the said citizen without reference to the police or the office of the
Director Public Prosecution.”12

The procedure therefore is substantially as it was in the previous constitutional dispensation.

A private person may engage services of private investigators at his/her expense to investigate
the circumstances of the offence and have the relevant evidence collected and preserved for a
possible trial.13 The private person shall have the same power of withdrawing from the
prosecution as is provided by section 8714, and the provisions of that section shall apply to
withdrawal by that person.

Step 3

The applications shall be accompanied by a certificate of urgency and a supporting affidavit

setting out the ground upon which the applicant is relying on.

Applications are generally governed by Order 51 of the Civil Procedure Rules 15 which are set
out through a notice of motion. Its contents shall be the complaint and permission requesting
for private prosecution.

The magistrate will inquire in accordance to Richard Kimani v. Nathan Kahara if; -

(i) The complaint has been made to the DPP or police, if so what was the result?
(ii) How is the party involved? Does the party have locus standi?
(iii) Has the party suffered any injury or danger?
(iv) Are they motivated, actuated, impelled by malice or political consideration?

12IsaacAluoch Polo Aluochier V. Stephen Kalonzo Musyoka & 218 Others [2013] eKLR.
13Supra, Note 1; Pp. 83
14Supra, Note 4
15Supra, Note 9

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If the above is satisfied the court will then, at its own discretion draw or cause to be drawn a
formal charge containing a statement of the offence(s).

POINTS TO NOTE

• Under s. 348A of the CPC it’s only the AG who can appeal from an order of acquittal by a
subordinate court a private prosecutor is not empowered to file such an appeal.
• It was seen in the case of Njoroge v Karanja (1984) KLR 662 where an accused had been
acquitted by trial court under s.210 CPC of offence of malicious damage to property.
Private prosecutor’s appeal was dismissed.

• Shah vs Patel (1954) XXI EACA 236 similarly held that a private prosecutor is not entitled
to be heard on appeal.

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Illustration

REPUBLIC OF KENYA
IN THE CHIEF MAGISTRATES COURT OF KENYA AT NAIROBI
MISCELLANEOUS Crim APPLICATION NO. OF 2019
XXXXXXXXXXXXX……………………………………..…………..……… APPLICANT
VERSUS–
YYYYYYYYYYYYYY……………..……………………………………..RESPONDENT
NOTICE OF MOTION
(Under Sections ………. And all other enabling provisions of the Law)

TAKE NOTICE that this Honourable Court shall be moved on the day of
2010 at 9.00 o’clock in the forenoon or soon thereafter for the hearing of an application on
behalf of the Respondent for Orders:-

THAT this Honourable Court be pleased to grant the applicant permission to commence
private prosecution against XXXXX…………….

THAT ……………...

WHICH APPLICATION is supported by the annexed affidavit sworn by xxxxx (should be

the applicant’s Affidavit and/or person who has standing) and is premised on the following
grounds, inter alia.

a) THAT ……………..
b) THAT ……………………..
c) Can be as many points as you’d want
d) to base your application on…

DATED at NAIROBI this day of 2019

ADVOCATES FOR THE APPLICANT

DRAWN & FILED BY:

TTTTTTTTT

TO BE SERVED UPON

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