Court of Appeal suspends ruling giving DPP power to draft charges

DPP Noordin Haji

Director of Criminal Prosecutions Noordin Haji.

Photo credit: Evans Habil | Nation Media Group

Police have regained their powers to draft charges for criminal suspects after the Court of Appeal yesterday suspended the decision of the High Court to vest the role exclusively in the Office of the Director of Public Prosecutions (ODPP).

In a ruling that has thrown some ongoing criminal cases into a disarray, a three-judge bench of the Appeal court issued an order halting execution of the judgment rendered by Justice Anthony Mrima last month.

The judgment dated May 23, 2022, had declared that drafting of charge sheets and prosecution of a criminal suspect in court is the exclusive mandate of the ODPP.

As a result of the judgment, the ODPP rolled out a new charge sheet bearing the name of its office and logo. The new charge sheet also had a stamp and signature of the prosecutor, and the police stamp and signature were removed.

This escalated the feud between DPP Noordin Haji and the Director of Criminal Investigation (DCI) George Kinoti over the exercise of prosecutorial powers. The two also started accusing one another of criminal actions.

Mr Kinoti, together with the Inspector-General of Police Hillary Mutyambai and Attorney General Paul Kihara Kariuki filed an appeal seeking to overturn Justice Mrima’s judgment.

They also sought a stay of the judgment pending determination of the appeal. And yesterday they got a relief after the judges of the Court of Appeal granted their request.

Although it temporary halted execution of the judgment, the appellate court did not pronounce itself on the status of the criminal cases whose charge sheets bear the DPP logo instead of the previous symbol -- the coat of arms.

“Normality has been restored in the criminal justice system. It had been disrupted. From now henceforth only police can draft the charge sheet and only a charge sheet signed by police can be admitted in court,” said lawyer Danstan Omari.

He observed that there will be dilemma and crisis in the criminal justice system as police and prosecutors return to the previous state of affairs.

“All the people who had been charged with the new charge sheet will have to be charged afresh,” said Mr Omari.

The Court of Appeal said it will release the detailed substantive ruling on October 7.

"Pending determination of the application, we grant an interim stay of execution of the judgment of Justice Mrima," said the bench.

The decision stemmed from an application filed by the Attorney General, DCI and the Inspector-General of police for a halt on execution of the judgment pending determination of the appeal against the High Court judgment.

The case at the High Court involved the prosecution of businessman Humphrey Kariuki and eight others over allegations of evading payment of taxes amounting to Sh17 billion.

Even though the Court of Appeal halted implementation of the judgment, it said the suspension does not affect the charges that had been levelled against Mr Kariuki and his co-accused.

Further, it did not affect their liberty as they had already been discharged by the trial court.

"We grant an interim stay of execution of the judgment, except in so far as the judgment relates to the charges and liberty of all the accused persons who have already been discharged by the trial court," said Justices Daniel Musinga, Agnes Murgor and Fatuma Sichale.

While urging the appellate court to halt the judgment, the Police IG stated that the stalemate occasioned by the ruling was a threat to national security.

He said people who have committed criminal offences could not be urgently charged in court.

"The court should take judicial notice that the country is in an electioneering period and the entire security apparatus and criminal justice system are supposed to be effective. This cannot be achieved with the legal uncertainty occasioned by the said judgment," said Mr Mutyambai.

He argued that the stability of a country was dependent on a robust criminal justice system and this had been compromised by the legal uncertainty brought about by the judgment.

In the disputed judgment, Justice Mrima ruled that the prosecution of criminal offences must be undertaken by the ODPP, including drafting of charges.

The judge said that no court in Kenya would accept, register and in any manner whatsoever deal with any charge sheets not prepared and signed by the lawful prosecutors from the ODPP.

The verdict barred police from drafting charge sheets.

“For avoidance of doubt, given the constitutional and legislative mandates in carrying out investigations, the National Police Service, the Ethics and Anti-Corruption Commission, the Kenya National Commission on Human Rights, the Commission on Administration of Justice, the Kenya Revenue Authority, the Anti-Counterfeit Agency or any other government entity mandated with criminal investigation role under any written law, cannot draft, sign and/or present any charge sheets in any criminal prosecution,” stated Justice Mrima.

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