PRIVATE PROSECUTION AND LIMITED RIGHT OF APPEAL

INTRODUCTION

Private prosecution in criminal law refers to a member of the public other than the prosecutor initiating criminal proceedings. This is provided under section 88 of the Criminal Procedure Code. In the case of Abdulmajid v Khitami & 2 others (Criminal Appeal E014?of?2021) [2022]?KEHC?9908?(KLR) the learned judge rendered his judgment, stating that it is only the Director of Public Prosecutions (DPP) on behalf of the Republic who was allowed to appeal to the High Court and that no such right of appeal was conferred upon the private prosecutor. The private prosecutor was of the option to sue the accused person through the state. It was therefore very difficult to sustain an appeal in such a case. The powers of the Director of Public Prosecutions (DPP) are laid out in Article 157 of the Constitution of Kenya, 2010.

This appeal was subject to the orders of the court barring Abdulmajid from initiating criminal proceedings against Khitami for allegedly stealing his motor vehicle after the Director of Public Prosecutions did not prefer charges against Khitami.

ORDERS OF THE COURT

The Honorable court made the following conclusive orders:-

• The Constitution of?Kenya, 2010 places the right to appeal to the prosecution or the accused person. According to section 348A of the Criminal Procedure Code, the prosecutor has the right to appeal to the High court. No such similar right of appeal was conferred upon the private prosecutor.
• A right of appeal was a creation of statute. The private prosecutor had to prove that section 88 of the criminal procedure code gave him that right to appeal and without it, he had no legal remedy in the criminal court.
• It was recommended that a private prosecutor who had been given leave to prosecute under section 88 Criminal Procedure Code ought to be given a limited right of appeal. In light of the above, the court will not seem like a dictator but rising jurisprudence and the rights of both parties will be protected.
• The exercise of the power of the Director of Public Prosecutions was not subject to review by the court unless the said conduct amounted to an abuse of the court process.
• A private prosecutor ought to be aware that whenever his complaint was found to be unreasonable he was liable to pay costs to the public prosecutor in terms of section 171 of the Criminal Procedure Code.

The Appeal was struck out with no order as to costs.

CONCLUSION

It is very important to file your case in accordance with the provided law to avoid pitiful embarrassment and dismissal of cases.

Ruth Rotich is an Advocate of the High Court of Kenya, Member of the Young Lawyers Committee Law Society of Kenya; Owner of Legal Podcast WAKILI GUMZO, Human Rights Activist, and an Academic Scholar.