The High Court has ruled that the Constitution does not recognise the power to arrest as an essential function of the Office of the Director of Public Prosecutions (ODPP).
Justice Reuben Nyakundi, formerly the presiding judge at the Malindi court, has said that the role of the ODPP in the criminal justice system ripens immediately after a decision to charge a person with an alleged offence has been made.
The guidelines formulated in the framework of the Constitution and ODPP Act principally do not recognise the power to arrest as a function of that office.
“In hierarchical systems likewise, the precise scope of any power to arrest with necessary modifications is vested with the National Police Service (NPS) under Article 244 of the Constitution,” the judge said.
The criminal justice system in Kenya, he said, entrusts the function of investigations to the police or other investigative agencies and that the prosecution directorate is never an active actor in that process of evidence gathering geared towards a recommendation to charge a person.
“DPP’s role is to decide whether a prima facie case exists to initiate or continue a prosecution before the trial courts. To this effect, the requirement of the existence of a crime having been committed by the respondents founded on the provisions of any penal law remained considerably unknown,” he said.
The judge made the ruling when he dismissed the ODPP’s request to have an earlier directive granting five people anticipatory bail against arrest reviewed.
The court noted that in the case, the ODPP’s task to conduct or direct a prosecution had not arisen and that the institution was erroneously sued.
“In my view, with regard to jurisdiction on the part of the DPP, the mandate for that office had not ripened to warrant it to be cited or sued as a party. Therefore, there can be no doubt that the challenge being posed in equal force by it in a way lacks the requisite jurisdiction and locus standi,” the judge said.
In July, Mr Omar Kahindi, Mr Elisha Kahindi, Mr Martin Gona, Mr Katana Patrick and Mr Samuel Ngolo obtained anticipatory bail of Sh100,000 to stop their arrest.
The five feared arrest over a land matter that is still pending in the Environment and Land Court.
They lamented that the police were investigating and planning to arrest them even before the conclusion of investigations.
They argued that the matter the police were investigating is still active in court and that the civil process should be allowed to conclude before any action is taken.
Arguments well founded
Justice Nyakundi agreed with them, noting that their arguments are well founded in law and that no evidence had been obtained against them.
The court also noted that no evidence had been provided by the police or corresponding investigating agency on the suspicion to enforce arrest without a warrant.
The ODPP, however, filed for a review of this ruling but the court declined the application, noting that the ODPP’s mandate in the matter had not arisen.
Justice Nyakundi noted that anticipatory bail does not obstruct the National Police Service or the ODPP in executing their constitutional and statutory mandate.