NAIROBI, Kenya, Dec 10 – The High Court in Kakamega has delivered a landmark judgment reinforcing the constitutional mandate 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, Sylvia Atamba.
In its decision issued on 1st December 2025, the court allowed an appeal lodged by both the ODPP and Atamba, finding that the trial magistrate had overstepped legal boundaries and misapplied the law governing private prosecutions. The magistrate’s decision was set aside in its entirety.
The dispute traces back to August 2022, when Victorine Atemba reported receiving threatening text messages allegedly sent from Atamba’s phone.
After investigations revealed that the matter was rooted in a domestic dispute, the ODPP opted for a Diversion agreement, a key tool under Kenya’s Alternative Justice Systems (AJS). The diversion was formalized on 22nd February 2024, effectively concluding the case.
Despite this, Atamba later sought permission from the magistrate’s court to initiate a private prosecution, arguing that she had not been adequately consulted during the diversion process.
The magistrate agreed, ruling that the ODPP had sidelined her views—an outcome the court said undermined her sense of justice.
That ruling prompted an appeal from both Atamba and the ODPP. Atamba argued that the diversion conclusively resolved the matter and that reopening it would expose her to double jeopardy. The ODPP contended that the trial court had improperly intruded into a constitutionally protected prosecutorial function.
The High Court agreed, holding that the magistrate had improperly assumed jurisdiction over issues that should have been raised through judicial review, not a private prosecution application. The court further noted that Ms. Atamba had not exhausted internal ODPP review mechanisms, nor had she demonstrated any legal reason to bypass them.
Crucially, the court found that allowing a private prosecution in this instance would amount to an abuse of court process and violate constitutional protections against double jeopardy. The judgment affirmed that the Diversion agreement remained the lawful and final resolution of the dispute.
The appeal submissions were prepared by Natasha Chala and argued by Loice Osoro on behalf of the ODPP.
By overturning the magistrate’s ruling, the High Court has reaffirmed the ODPP’s constitutional authority to exercise prosecutorial discretion—including the use of diversion and other AJS-aligned alternatives aimed at promoting restorative justice.
Legal experts say the decision is likely to strengthen Kenya’s diversion framework and provide much-needed clarity on the limits of private prosecutions, particularly in cases where alternative justice mechanisms have already been utilized.
