The High Court sitting in Kajiado has ruled that subordinate courts do not have jurisdiction to interrogate or question the validity of prosecutorial decisions made by the Office of the Director of Public Prosecutions (ODPP).
In the ruling, the court declared as irregular proceedings in which a senior prosecutor had been summoned before the Kajiado Law Courts to explain the basis of a decision to charge in a land fraud case.
The High Court further nullified arrest warrants that had been issued against the prosecutor after she allegedly failed to honour the summons.
Lady Justice C. Meoli, who delivered the ruling, held that the propriety of a prosecutorial decision cannot be examined through the testimony of a prosecuting counsel before a trial court, but must instead be challenged through the proper legal channels before a court of competent jurisdiction.
“The propriety or otherwise of a prosecutorial decision is not a matter to be canvassed through the testimony of a prosecuting counsel before a subordinate court, but rather through an appropriate challenge before a court of competent jurisdiction,” Meoli stated.
The judge added, “A party aggrieved by a decision by the ODPP to lay charges which, in his view, was not reasonably made is entitled inter alia to file a challenge by way of a constitutional petition or judicial review application before the High Court, which is vested with the jurisdiction to entertain such a proceeding pursuant to Article 165 of the Constitution.”
The court also found that the actions of the subordinate court amounted to judicial overreach and an attempt to indirectly supervise an independent constitutional office.
Justice Meoli noted that the prosecutor in question was neither a state witness nor an investigator in the matter, had not sworn any affidavit, and was not a compellable witness whose testimony was necessary for the determination of the case.
She further observed that the summons had been issued solely to cross-examine the prosecutor on the Director of Public Prosecutions’ decision to charge, a move the court deemed improper.
The ruling effectively reaffirms the independence of the ODPP and clarifies the limits of subordinate courts in questioning prosecutorial discretion.
