The High Court in Kakamega has issued a significant ruling affirming the constitutional powers of the Office of the Director of Public Prosecutions (ODPP), setting aside a magistrate’s ruling that had allowed a private prosecution against a local resident namely Sylvia Atamba.

In a Judgement delivered on 1^st December 2025, the high court allowed an appeal filed by the ODPP and Ms. Atamba, setting aside in full a magistrate’s earlier decision that had granted one Ms. Victorine Atemba permission to privately put the respondent to prosecution. The court faulted the magistrate for overstepping legal boundaries and misapplying the law on private prosecutions.

The case traces back to August 2022, when Ms. Atemba reported receiving threatening text messages allegedly sent from Ms. Atamba’s phone.

Following investigations into the matter and upon realizing it was part of a domestic related dispute, the ODPP opted for a diverse agreement, an increasingly utilized mechanism under Kenya’s Alternative Justice Systems (AJS) framework, and formalized the arrangement on 22^nd February 2024, concluding the case effectively.

However, months later, Ms Atemba moved to the magistrate’s court seeking leave to institute a private prosecution, arguing that she had been insufficiently consulted during the diversion process.

The magistrate agreed and ruled that the ODPP had sidelined Ms. Atemba’s views and thereby undermined he sense of justice, a decision that triggered appeals from both Ms. Atamba and the ODPP.

In its judgement, the High Court ruled that the magistrate had improperly assumed jurisdiction over issues that should have been pursued through judicial review and not a private prosecution application. The court further noted that Ms. Atemba had filed to exhaust the ODPP’s internal review mechanisms before moving to court.

In a key finding, the High Court held that granting leave for a private prosecution in this context would amount to an abuse of court process and violate constitutional safeguards against double jeopardy, effectively affirming that the diversion agreement remained the lawful resolution of the dispute.

According to the ODPP, the ruling is expected to strengthen the it’s Diversion framework and offer greater clarity on the private prosecutions limits, particularly where restorative justice mechanisms have already been applied.