NAIROBI, Kenya, May 21 — The Office of the Director of Public Prosecutions (ODPP) has secured a major legal victory after the High Court in Kajiado nullified summons and arrest warrants issued against a senior prosecutor over a prosecutorial decision to charge suspects in a land fraud case.
In the ruling, the High Court held that subordinate courts do not have jurisdiction to question the validity or propriety of prosecutorial decisions made by the ODPP.
The Court declared irregular the proceedings in which a senior prosecutor had been summoned to appear before the Kajiado Law Courts to explain the basis upon which charges had been approved in the matter.
“The Court also nullified the resultant warrants of arrest that had been issued against the prosecutor for allegedly failing to honour the summons,” the ODPP said on Thursday.
In a judgment delivered by Justice Christine Meoli, the Court ruled that the legality or propriety of a prosecutorial decision cannot be interrogated through the testimony of a prosecuting counsel before a trial court.
Judicial overreach
Instead, the Court stated, such decisions can only be challenged through appropriate legal mechanisms before a court with competent jurisdiction.
Justice Meoli found that the actions of the subordinate court amounted to judicial overreach and an attempt to indirectly supervise or control an independent constitutional office.
“The prosecution counsel, in making the decision to charge, was neither a State witness nor an investigator in the matter,” the Court observed.
The judge further noted that the prosecutor had not sworn any affidavit in the case and was not a person whose evidence was necessary for the fair determination of the proceedings.
According to the ruling, the prosecutor had been summoned solely for the purpose of being cross-examined on the decision by the Director of Public Prosecutions to approve charges in the land fraud case.
The ODPP welcomed the decision, describing it as an important affirmation of prosecutorial independence and the constitutional mandate of the office.
The High Court revision application on behalf of the ODPP was prosecuted by Vivian Kambaga.
