1.

1 INTRODUCTION
Where an offence has been committed or is suspected to have been committed, it is important
that investigations are carried out.1 This ascertains the person who committed the offence and to
find out the circumstances that led to the offence being committed. 2 In the process, evidence is
collected and the investigating officer is able to find out whether an offence was committed, who
committed it, under what circumstances was the offence committed and whether the suspect
should be charged or prosecuted.3
Proceedings may be instituted either by the making of a complaint or by the bringing before a
magistrate of a person who has been arrested without warrant. 4 A complaint is an allegation that
some person known or unknown has committed or is guilty of an offence. 5 A complainant is any
person who lodges a complaint within lawful authority such as a Police Officer, Chief of your
location, and Magistrates.6
The complaint shall be in writing or if given viva voce, the same shall be reduced to writing by a
magistrate having jurisdiction and signed by both the complainant and the magistrate. 7 Where a
complaint has been lodged in a Police Station, the complaint will be recorded in the occurrence
book as the Inspector General may direct. The complainant is then given an OB number and
investigations begin.

1.2 OCCURRENCE BOOK

The Officer in Charge of the Station, OCS, maintains an Occurrence Book, recording such
complaints as the Inspector General may direct. The Occurrence Book is designed for all Police
Stations for police use and is usually divided into seven columns.
The Occurrence Book is opened at midnight daily, where the first report of the day is recorded
and it indicates: OB OPENED

1
2
3
4
5
6
7

Benjamin Odoki, A guide Criminal Procedure in Uganda (LawAfrica, Uganda, 2011) Pp. 25
Ibid, 27
Ibid, Pp. 25
Criminal Procedure Code CAP 75; Sec 89(1)
Ibid, Section 2
Ibid, Section 89(2)
Ibid, Section 89 (3)

When closing the Occurrence Book, entries are made in such a way that 3 rd parties may not
interfere with the entries; this is because whatever is entered into the O.B is the responsibility of
the Officer on duty who has signed it.
From OB number 1, when the OB is opened, entries are entered numerically and consecutively
as they are reported until one minute to midnight that is 11:59 p.m. When the last entry is made
in the OB and it normally indicates the: Weather Report.
The different columns in the OB include;
1st column- Number of the entries. Every complaint brought to the police station is supposed to
be entered in the Occurrence Book.
2nd column- Reference. This will only be indicated if there are other subsequent scenarios of
similar nature as those earlier reported within that particular or even on different days where the
matters are related.
3rd column- Hour and Minute. This is the exact time when the complaint was lodged.
4th column- Case file Number
5th column- Nature of Occurrence. This is a summarized description of what the complaint is
about.
6th column- Remarks. This is filled by the OCS to give administrative direction
7th column- signature of the officer making the entry
Once a person makes a complaint, they are given an OB number which is useful for quoting the
specific OB entry from which one wishes to get an extract. The OB number is always recorded in
the charge sheet.
The complainants name, phone number and residence will also be recorded, this may be in the
fifth column, so that in case of any progress or happenings or inquiries about anything in relation
to his complaint, he may be contacted and informed of the same.

The OCS will at the end of each day peruse the Occurrence Book to make his remarks, as to
whether any of the complaints made should be investigated. He will then assign any of the
sergeant officers in his station to conduct investigations on the matter.
The Investigating Officer will then visit the scene of crime or the alleged offence ads indicated in
the OB as reported, to gather evidence, collect exhibits. He may also arrest the suspects and if
there are any witnesses to the crime at the time of the search, they can record their witness
statements. All this, he will have to record in the OB when he returns to the station- the person
arrested and the exhibits found. The suspects will then be booked. The records will then be
forwarded to the Criminal Investigation Department.
Report before the Raid:
The entry made before the raid at home of Pasta Mkombozi, of the complaint lodged in the
Police Station, that Pastor Mkombozi was keeping a cache of weapons which was used to
commit robberies in the County of Kwingi. The report was made by various residents of Kwingi.
On the first column, indicate the number of entry entered as the complaints are made in a
chronological order. The second column indicates the reference made to any other entry number
by subsequent reports if the case scenarios are related. The third column indicates the exact time
at which the complaint was made, in 24-hour clock system. The fourth column indicates the case
file number, which will be given after investigations have been done. The fifth column gives a
detailed description of what was complained of. The sixth column provides for remarks by the
Officer in charge of police station, (OCS) giving instructions as to what is to be done. The final
column is the signature of the Officer on duty that made the entries.

OCCURRENCE BOOK BEFORE RAID

NO. REFEREN
CE
1.
2.

HRS/MI

IF NS

ANY
-

00:00
00:30

CASE

NATURE

FILE NO.

OCCURRENCE

O.B OPENED
NOTED
Judy Gitari attacked and Paula Atukunda
robbed

OF REMARKS

by

suspect,

who

SIGNATU
RE

known to conduct the

kept

a investigations

cache of weapons, along

3.

04:00

County of Kwingi.
Kibet Kirui attacked by Naomi Wanja to

known suspects of the investigate

Wavutaji
4

23:50

Sect

along

County of Kwingi.
Mutanu Muemma robbed Atukunda Paula
and attacked by leader of to investigate
Wavutaji Sect along the

5.

23:59

County of Kwingi.
Light Showers. Cloudy NOTED
Day.

Report after the Raid:

The entry after the raid at Pastas House would indicate the number of entry, followed by
reference indicated in OB before raid because they are related. It will then indicate those
arrested, identifying them by name, nature of crime and time of arrest. In this case, Pastor
Mkombozi, Mfuataji Wima, Kimduni Nancie, Kwetu Queen, Mrembo Mweusi and four others
that were listed under the title Alshabiri-looking for local networks to partner with, were
arrested.

NO.

REFERE
NCE

HR/MI

IF N

CASE FILE NATURE

NO.

OCCURRENCE

OF REMARK
S

SIGNATUR
E

1.
2.

ANY
00:00
O.B No. 02:00

No.10

2/3/4

2015

of

OB OPENED
NOTED
of Pastor
Mkombozi
arrested for possession

2015

of

AK-47

rifle

Kalanshnikov,

nylon

bag with seeds and

leaves suspected to be
3.

O.B No. 3 02:05

No.11

of 2015

2015

cannabis sativa.
of Mfuataji
Wima
arrested for being a
suspected member of

4.

O.B No. 3 02:10

No.

of 2015

2015

12

the Wavutaji Sect.

of Kimduni
Nancie
arrested for being a
member of Wavutaji

5.

6.

O.B No. 3 02.20

No.13

of 2015

2015

-----

02.25

No.14
2015

Sect.
of Kwetu Queen arrested
for being a member of
Wavutaji Sect.
0f Mrembo
Mweusi
arrested for being listed
as a potential member
to network with the
Wavutaji Sect.

2.1 CHARGE SHEET

Criminal Proceedings commence when a complaint is lodged against a suspected person. Section
89 of the Criminal Procedure Code states that proceedings may be brought against a person by
either making a complaint or by bringing before the magistrate a person who has been arrested
without a warrant.8 If the complaint raises a cause of action and evidence is sufficient to take the
matter to trial, a charge is entered against the accused. The complaint must disclose an offence
8

Supra, Note 4; Section 89 (1)

provided for and existing in law. Example; Assault causing actual bodily harm contrary to
Section 251 of the Penal Code.9
A charge is a formal written accusation of an offence drawn by a Magistrate, Police Officer or
the Director of Public Prosecution and is signed as required by law. A charge made in a superior
court is called an information.
The charge informs the accused of what he/she has been accused of. In Martino Judagi and
another V. West Nile District Administration 10 Udo Udoma CJ held that failure to frame a
charge in the subordinate court was a fundamental mistake and cannot be cured. Therefore, no
case shall proceed without a charge.
The purpose of a charge is to intimate or give the accused notice of the nature of the accusation
which the accused is called upon to meet in the course of a trial. 11 It should inform the accused
person in clear and unmistakable terms of the allegations against him; 12 in order for him to be
able to prepare his defense. A person who is accused of an offence without a charge would be
prejudiced in their defence if they did not know what case they are facing.13
A charge is the foundation of the accusation and care should be taken to ensure that it is properly
framed and that evidence is only adduced on matters that have been put in the charge and not on
other matters.14 In a Ugandan case Republic V. Tambukiza,

15

it was stated that a charge is the

essence of the criminal procedure and where the court fails to draw up and sign a formal charge
was a defect which rendered the trial a nullity.
The charge should be written in an ordinary language of the court and interpreted to the accused
in a language that they understand.16 It should also disclose in clear terms, the specific offence,
ensuring that there is no ambiguity.17 In the case of Nahashon Marenya V. Republic
9

18

the trial

CAP 63 Laws of Kenya

1963 EA 406
11
Kiage P., Essentials of Criminal Procedure in Kenya. (LawAfrica, Kenya, 2014)
12
Adan V. Republic (1973) EA 45
13
Constitution, 2010. Article 50 (2) (b)
14
Ssekaana Musa, Criminal Procedure and Practice in Uganda. (Law Africa, Kenya, 2010), Pp.
217.
15
(1958) EA 212
16
Supra, Note 4; Section 137(a)(2)
17
Supra, Note 4; Section 134
18
1969 EA 236
10

judge enhanced that the charge should be clear and unequivocal so that the accused person
clearly understands the charge against him.
The charge sheet on the other hand is a document which informs the accused and the court, of the
allegations which have been levelled against the accused by the prosecution. 19 A charge sheet
should have a maximum of 12 counts as was held in Ochieng V. Republic,20 where the judge
reiterated the point. Here, the accused person was charged with forty four counts of motley
offences.21 On appeal it was held that it was undesirable to charge the accused with so many
offences on the same charge sheet as it may occasion prejudice and embarrassment.22
The Constitution, in Article 49 (1) (g) provides that an arrested person at first court appearance,
should be charged or informed of the reason for the detention continuing. If the court fails to do
this then the arrested person should be released. The charging process happens as a basic
requirement of fair trial as laid out in Article 50 (2) (b) of the Constitution. When a person is
brought before court, they must be told the charges against them. This has to be done in a
language that the person understands.
If the complaint that has been brought before the magistrate does not disclose an offence then the
magistrate may refuse to admit the complaint and must record the reasons for refusing to do so. 23
A person shall not be convicted for an act or omission that at the time it was committed was not
an offence in Kenya or a crime under international law.24 Section 134 Criminal Procedure Code
provides that every charge or information shall be sufficient if it contains a statement of the
specific offence with which the accused is charged together with such particulars as may be
necessary for giving reasonable information as to the nature of the offence charged.

2.2 PROCESS OF FRAMING A CHARGE

2.2.1 COMMENCEMENT.

This usually states the police case number as found in the Occurrence Book. It indicates the date
to court; that is the day the accused person is presented to court. The O.B No. and Serial No. of
19
20
21
22
23
24

Supra, Note 11
High Court Criminal Application No. 10 of 1985
Ibid
Ibid
Section 89 (5) of the Criminal Procedure Code.
Supra, Note 13; Article 50 (2) (n)

the particular case are indicated to help the defense counsel to do some preliminary investigation
on their clients case.
This section also includes: Court File No, Nationality, Apparent Age, First Name, Surname, and
Address of the accused persons.
Therefore, in this case Pastor Mkombozi and Mfuataji Wima will have to give their specific
details. The Officer drawing up the charge will refer to the Occurrence Book to obtain details on
the O.B No. and Serial No.
2.2.2 STATEMENT OF OFFENCE

This usually gives the offence committed and the specific Section contravened. 25 Pursuant to
section 137 of the Criminal Procedure Code and as part of the well-recognized principle of
criminal law, no person shall be convicted of a criminal offence unless that offence is defined
and the penalty thereof prescribed in a written law.
The offence must be provided for by written law as in the case Stephen Chege V. Republic.26
Whereby an offence is defined in one section and the penalty is provided for in another section, it
is prudent to quote both sections in the charge. 27 However, it is preferable for the penal section to
be given.28 Example, Theft contrary to section 275 of the penal code as read with Section 268 of
the Criminal Procedure Code.
The statement of offence describes the offence that the person has been charged with. It offers a
description of the offence in ordinary language29 avoiding as far as is possible the use of
technical terms. The reference to statute shall be with regard to the section that prescribes the
punishment and not to the section that defines what the offence is. The person charged must be
charged with an offence that exists in law. If a conviction is based on a non-existent law, it may
be quashed.30

25
26
27
28
29
30

Supra, Note 4; Section 137

Criminal Application 785 of 1982
Ibid
Cosmas s/o Nyandago V. Republic (1955) 22 EACA 450
Supra, Note 11; Page 76
Oremo V. Republic (1990) KLR 290

When reading out the charge to the accused, the court should ensure that the accused understands
the charge that is being read to him. If the accused does not understand it, then the court must
take the time to explain it to him after which it will record that it did so.
2.2.3 PARTICULARS OF THE OFFENCE

The particulars required are such as will provide reasonable information as to the nature of the
offence charged. It indicates what was complained about, showing where and when the offence is
alleged to have been committed, the subject matter of the charge and identifies the accused and
complainant. For example: if it is a charge of theft, we indicate, did the accused steal? What did
he steal? And when did he steal it? The particulars should be sufficient enough to disclose an
offence.31
Essential ingredients should be expressed in clear times. These include the time, place, date and
the circumstances in which the offence was committed. Lack of ingredients is fatal to the charge
as was decided in Francis Kimani Muthoko & Another V. Republic.32

2.3 DUPLICITY OF CHARGES

Duplicity is the charging together of two or more offences in a single count 33 and charging the
same offence in different counts.34 Blacks Law Dictionary further defines duplicity as; charging
of the same offence in more than one count of an indictment or the pleading of two or more
distinct grounds of complaint or defence for the same issue. Duplicity is not curable unless it
occasions a failure of justice.35 In Republic V. Sowedi Kauta,36 the charge of murder of two
31

Yozefu and Another V. Republic (1969) EA 236

CA 331 of 2006
33
With the exception of Burglary contrary to section 304 CPC and Stealing contrary to
section 279 CPC are allowed to be charged in the same count: Form 9 in the 2nd Schedule to
the Criminal Procedure Code.
34
(1933) 13 KLR 105; Also see Republic V. Mwongella (1934) 1 EACA 152
35
Section 382 CPC If we draft and we quote wrong/non-existent laws, it is not fatal as failure
does not occasion failure of justice or prejudicial to the accused person.
36
(1933) 13 KLR 105; Also see Republic V Mongella, (1934) 1 EACA 152 where the accused
was convicted of the murder of six persons by willfully setting on fire the hut in which they
were asleep. The charge of murdering the six was laid in a single count. It was held that he
should have been charged in six separate counts.
32

persons was put in one count and there should have been two separate counts, one in respect of
the other.
Duplicity can be avoided by having an alternative charge. For example, section 86 of the Traffic
Act provides for offences created in the alternative example causing death by driving a motor
vehicle: either by driving recklessly, at a high speed, driving in a manner dangerous to the public
or leaving the motor vehicle on the road in a manner dangerous to the public. Therefore, instead
of having more than offence in the same count, one charge can be the main charge and the other
can be put in the alternative to the main charge.

2.4 ALTERNATIVE CHARGES

This is a charge preferred against the accused person instead of the former charge. Alternative
charges may be used where the acts of which an accused person is charged constitutes more than
one offence. The factors which constitute the offences in question are not clear; and as a
consequence it is not easy to distinguish which offence was actually committed. For example, a
person thought to have stolen property contrary to section 275 of the Penal Code, if not certain
that the accused person actually stole, the alternative charge would be, Handling of stolen
property contrary to section 322 of the Penal Code. It is uncertain as to whether the alleged
offence contravenes one section or the other of the statute.
Where alternative charges are preferred against an accused person, the Court of Appeal has ruled
in a number of cases that a conviction should be entered on only one and not both the main and
the alternative charge.

In Republic V. Nassa Ginners Ltd 37 the magistrate convicted the

accused on one count and acquitted him on the alternative. It was held that a more proper course
would have been to make no finding on the alternative count.

2.5 JOINDER
Section 135(1) of the Criminal Procedure Code provides for joinder of counts, the charging
together of counts in a charge where the offences charged are founded on the same facts or form
or are part of a series of offences of the same or similar character. Where an accused person is
alleged to have committed more than one offence, he may be charged in the same proceedings
with all the offences.

37

(1995) 22 EACA 434

Section 136 on the other hand provides for joinder of two or more accused persons in the same
charge sheet. It gives instances where persons can be charged together in the same charge. Where
several persons join in the commission of an offence, all or any number of them may be jointly
charged.
In Republic V Hassan Wa Saleh and Another 38 It was held that two persons accused of raping
two women separately at about the same time and place cannot be tried at the same trial, the
transaction not being the same.

38

(1906-08) 2 EALR 105

2.6 SAMPLE CHARGE SHEET

THE KENYA POLICE
CHARGE SHEET
O.B No:

Police File No. Cr. 50/2/2015

Date to Court:
Court file No:

18/03/2015
654/2015
Christian names Surname or fathers ID
in full or name
name
Certificate
No.

Sex

Nationality
or tribe

Apparent
age

Address
(include
district and
location
where
applicable)

PASTOR MKOMBOZI

KENYAN

ADULT

KENYAN

ADULT

KWINGI COUNTY
KWINGI COUNTY

MFUATAJI WIMA

MKOMBOZI
WIMA

Charge:
COUNT 1:

POSSESSION OF SPECIFIED FIREARM WITHOUT A LICENCE, PERMIT OR

28751456
286312334

OTHER LAWFUL JUSTIFICATION CONTRARY TO SECTION 89 OF THE PENAL

CODE CAP. 63 AS READ WITH SECTION 4A OF THE FIREARMS ACT, CAP. 114

Particulars
of PASTA MKOMBOZI and MFUATAJI WIMA, on 3rd March 2015 at Kangatala
offence
(See Estate, Gitgal Area within Kwingi County at about 1 a.m were found in possession of a
second schedule
firearm without a licence, permit or other lawful justification.
of the C.P.C.)

(FOR OTHER COUNTS, SEE ATTACHED SHEET)

If
accused Date
arrested
arrest

Yes

11/03/2015

of With or
Date Bond or If
application
without
apprehensio bail and made
for
warrant
n report to amount
summons to issue
court

without

N/A

In custody

N/A

Remanded
or
N/A
adjourned to
Complainant
REPUBLIC OF KENYA
and address
WITNESSES
1. Mr. Sheria Kali
2. Mr. Kuyikazi
Sentence
Court and date
Court File No. 654/2015
.
Officer in charge Kwingi Police station

COUNT II
CHARGE
POSSESSION OF NARCOTIC DRUGS CONTRARY TO SECTION 3(1) AS READ WITH
SECTION 3(2) OF THE NARCOTIC AND PSYCHOTROPIC SUBSTANCES (CONTROL)
ACT, NO. 4 OF 1994
PARTICULARS OF THE OFFENCE
PASTA MKOMBOZI and MFUATAJI WIMA, on 3rd March 2015 at Kangatala Estate, Gitgal
Area within Kwingi County at about 1 a.m were found in possession of dry leaves and seeds of
cannabis sativa.
COUNT III
CHARGE
ENCOURAGEMENT AND RECRUITMENT OF PEOPLE TO BECOME MEMBERS OF AN
ORGANISED CRIMINAL GROUP CONTRARY TO SECTION 3(b) AND 4 OF THE
PREVENTION OF ORGANISED CRIMES ACT, CAP 59, LAWS OF KENYA.
PARTICULARS OF CRIME
PASTA MKOMBOZI and MFUATAJI WIMA, on 3rd March 2015 at Kangatala Estate, Gitgal
Area within Kwingi County at about 1 a.m were found in possession of leaflets for the
recruitment of members to the terrorist group Alshabiri.

PRIVATE PROSECUTION
3.1 INTRODUCTION
The general procedure for prosecution is through the office of the Director of Public Prosecution
(DPP).39 The Office of the Director of Public Prosecution Act, 2013, however, enumerates at
least two ways in which prosecution can be carried out in Kenya. That is;40
i.

Prosecution as a constitutional mandate of the office of the Director of Public

ii.

Prosecution.
Prosecution by a private person in circumstances where prosecution by the Director of
Public Prosecution is not exercised or is unlikely to be exercised.

3. 2 PRIVATE PROSECUTION
Private prosecution happens when any person, other than a public prosecutor or a police officer
who has reasonable and probable cause to believe that an offence has been committed by any
person makes a complaint of the alleged offence to the magistrate who has jurisdiction to try or
inquire into the alleged offence, or within the local limits of whose jurisdiction the accused is
alleged to reside or be.41 The power of private prosecution is undoubtedly right and necessary in
that it enables citizens to bring even the police or the government officials or cronies of DPP
before the criminal courts when they commit wrongs against citizens and the DPP or government
is unwilling to make the first move. 42 This, however, is not without statutory and legal

39

The Office of the Director of Public Prosecution Act, 2013; Also see Constitution Article
157(6)
40
Ibid, Sections 28 & 57
41
Supra, Note 14; Pp. 80-81; Also see Supra, Note 4; Section 88.
42
Ibid, Pp. 81; Also see Supra, Note 11; p.66; Also see Gouriet V. Union Workers [1977] 3 All
ER 70 where Lord Wilberforce stated, Enforcement of the law means that any person who
commits the relevant offence is prosecuted. So it is the duty of the director of public
prosecutions or of the attorney general, to take steps to enforce the law in this way. failure
to do so, without good cause, is a breach of their duty the individual, in such situations,
who wishes to see the law enforced has a remedy of his own: he can bring a private
prosecution...this historical right which goes right back to the earlier days of our legal
system, though rarely exercised in relation to indictable offences, and though ultimately
liable to be controlled by the attorney-general (by taking over the prosecution and, if he
thinks fit, entering a nolle prosequi) remains a valuable constitutional safeguard against
inertia or partiality on the part of authority. Also see Richard Kimani V. Nathan Kahara where
it established that; The state is unwilling to prosecute or There is a real apprehension or fear
of official lethargy, corruption or bias.

mechanisms to ensure that the independence of the office of the Director of Public Prosecution is
not prejudiced.43
Private prosecutions does not extend to serious criminal matters or where limited private
interests are involved as set out in the case of Gregory and Another v. Republic thro
Nottingham and two others.44
Any person conducting the prosecution may do so personally or by an advocate.45

3.3 PROCESS OF PRIVATE PROSECUTION

Step 1
Any person who institutes private prosecution shall, within thirty days of instituting such
proceeding, notify the Director in writing of such prosecution.46
In the Floriculture International Limited and Others47 case Kuloba J. stated that criminal
proceedings at the instance of a private person shall be allowed to start or to be maintained by the
private prosecutor if:
1. The complainant has exhausted public machinery of prosecution before embarking on it
himself;
2. The Attorney General or other public prosecutor seized of the complaint has declined to
institute criminal proceedings;
3. The refusal by the state agencies to prosecute is without reasonable cause and there is no
good reason that a prosecution should not be undertaken;
4. The suspect is not prosecuted at that point in time there is likely to be a failure in public
and private justice

43

Supra, Note21, Pp. 84

[2004] 1 KLR 547; where it was stated that, although criminal prosecutions may be
commenced by a person other than the Attorney General, such occasions must be few and
limited and even when they come to pass, the Attorney Generals authority remains entirely
uncompromised and he can at his own discretion take over the case in question
45
Supra, Note 1, Section 88(3)
46
Supra, Note 38, Section 28(2)
47
Floriculture International Limited and Others, [High Court Misc. Civil Application No. 114 of
1997], Kuloba, J.; Also see Richard Kimani V. Nathan Kahara where it established that; The
state is unwilling to prosecute or There is a real apprehension or fear of official lethargy,
corruption or bias.
44

5. There is basis for the locus standi, such as, that he has suffered special, exceptional and
substantial injury peculiarly personal to him and that he is not motivated by malice,
politics or ulterior considerations;
6. There exists demonstrable grounds for believing that a grave social evil is being allowed
to flourish unchecked.
Step 2
Permission ought to be sought before initiating private prosecution proceedings. Therefore, leave
must be sought under section 88 (1) of the Criminal Procedure Code from a magistrate to
conduct a private prosecution. In the case of Otieno Clifford Richard V. Republic High Court
at Nairobi the court observed as follows with regards to leave to carry out private prosecution;
Section 85 to Section 88 of the Criminal Procedure Code deal with
Appointment of public prosecutors and conduct of prosecution. On the other
hand, Section 89 to Section 90 of the Criminal Procedure Code deal with the
Institution of proceedings and making of complaint. We think that in the case of
a private prosecution an application must first be made under Section 88(1) of the
Criminal Procedure Code for the Magistrate trying the case to grant or refuse to
grant permission to the Plaintiff to conduct a private prosecution. It is after
permission has been granted for the private prosecution to be conducted, that
Section 89 and Section 90 of the Criminal Procedure Code can be brought into
effect and the criminal proceedings instituted. We believe that the principles set
out in the KAHARA CASE at page 89 are good law and provide guidance to a
subordinate court when determining the question whether to allow a private
prosecution since it spells out certain issues which must be addressed by the court
when considering the application for permission to private prosecute before
granting it.48
Unlike in the former Constitution, the Director of Public Prosecution can only take over a private
prosecution, with the permission or authority of the person undertaking such prosecution. With
regard to discontinuation or termination of prosecution, the Director of Public Prosecution
48

Otieno Clifford Richard V. Republic High Court at Nairobi (Nairobi Law Courts) Misc. Civil
Suit No. 720 of 2005.

cannot terminate or discontinue any prosecution without the permission of the Court. 49 If or when
the Director of Public Prosecution takes over proceedings, they become public prosecution.
However, the court has in the post 2010 Constitution continued to hold that despite the changes,
the procedure for instituting private prosecution remains unchanged. In Isaac Aluoch Polo
Aluochier V. Stephen Kalonzo Musyoka the court stated;
I believe that the law and judicial precedent with regard to the extent and circumstances
under which a private person may institute criminal prosecutions against another as was
in force under the former Constitution is still applicable today. I do not believe that a
private citizen can wake up one morning and decide that a fellow citizen has committed
an offence, and that he is entitled as of right to bring a private prosecution against the said
citizen without reference to the police or the office of the Director Public Prosecution.50
The procedure therefore is substantially as it was in the previous constitutional dispensation.
A private person may engage services of private investigators at his/her expense to investigate
the circumstances of the offence and have the relevant evidence collected and preserved for a
possible trial.51 The private person shall have the same power of withdrawing from the
prosecution as is provided by section 87 52, and the provisions of that section shall apply to
withdrawal by that person.

Step 3
The applications shall be accompanied by a certificate of urgency and a supporting affidavit
setting out the ground upon which the applicant is relying on.
Applications are generally governed by Order 51 of the Civil Procedure Rules53 which are set out
through a notice of motion. Its contents shall be the complaint and permission requesting for
private prosecution.
49
50
51
52
53

Supra, Note 13; Article 157(6) (b) and Article 157(8)

Isaac Aluoch Polo Aluochier V. Stephen Kalonzo Musyoka & 218 Others [2013] eKLR.
Supra, Note 1; Pp. 83
Supra, Note 4
Supra, Note 9

The magistrate, in this scenario, will inquire in accordance to Richard Kimani v. Nathan
Kahara if;(i)
(ii)
(iii)
(iv)

The complaint has been made to the DPP or police, if so what was the result?
How is the Association is involved in terms of locus standi
Has the Association suffered any injury or danger?
Are they motivated, actuated, impelled by malice or political consideration?

If the above is satisfied the court will then, at its own discretion draw or cause to be drawn a
formal charge containing a statement of the offence(s).
The Association who had been following the arrest and investigation may prosecute through
private prosecution of the women associated with Pasta Mkombozi. The first issue is to establish
that, the Association of Kangatala Residents has locus standi to initiate prosecution of the women
associated with Pasta Mkombozi regarding the arrest and recoveries.54
The second issue would be to establish if the association had been following the arrest and
investigation seemed to have done their due diligence by making several complaints to the police
and went to the extent of the DPPs office with no success.

54

Locus standi is provided for in Article 22 of the Constitution of Kenya; it states that every
person has the right to institute court proceedings where a right or fundamental freedom in
the Bill of Rights has been denied, violated, infringed or is threatened. Furthermore, Article
22 (2) (d) states that court proceedings under clause 1 may be instituted by an association
acting in the interest of one or more of its members.

ANNEXTURES
THE REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
MILIMANI COURTS
MISCELLANEOUS CRIMINAL APPLICATION NO OF 2015
ASSOCIATION OF KATANGALA RESIDENTS..APPLICANT
VERSUS
KWETU QUEEN.. 1ST RESPONDENT
QUEEN MWEUSI..2ND RESPONDENT
CERTIFICATE OF URGENCY
I KIBETT EMMANUEL, being an Advocate of the High Court of Kenya on behalf of the
applicant herein, do hereby certify this application to be urgent for reasons:1. THAT the applicant has been following the arrest and investigation of the case against

the respondents.
2. THAT for two months now, no charges have been preferred against the respondents by

the police or the DPP, despite the applicants efforts to compel them to.
3. THAT passage of time will erode evidence and occasion a miscarriage of justice.

WHICH APPLICATION is supported by the annexed affidavit of the applicant, MPOLE

MKUNJUFU.

Dated at Nairobi This .Day Of 2015

..

KIBETT EMMANUEL
FIRM TWOTWO & CO. ADVOCATES
ADVOCATES FOR APPLICANT
DRAWN AND FILED BY:FIRM TWOTWO & CO. ADVOCATES,
LANGATA SOUTH ROAD,
P.O. BOX 30369-00100,
KAREN, NAIROBI.

REPUBLIC OF KENYA
IN THE RESIDENT MAGISTRATES COURT OF KENYA AT NAIROBI
MISCELLANEOUS CAUSE NO.

OF 2015

ASSOCIATION OF KATANGALA RESIDENTS...APPLICANT

VERSUS
KWETU QUEEN.. 1ST RESPONDENT
QUEEN MWEUSI.2ND RESPONDENT

NOTICE OF MOTION
(Under Section 88(1 )of Criminal Procedure Code Cap 75 Laws of Kenya, Section 28 (1) of the
Office of the director of Public Prosecutions Act NO 2 of 2013 and Article 157 (6) (b) of the
Constitution of Kenya 2010)
TAKE NOTICE that this Honourable Court shall be moved on the

day of

2015 at 9.00 oclock in the forenoon or soon thereafter for the hearing of an application for
Orders:1. THAT this matter be certified as urgent.
2. THAT this Honourable Court be pleased to grant leave to the applicant herein to
privately prosecute the respondent.

3.

THAT this Honourable Court grant costs of the application.

4.

THAT this Honourable Court be pleased to grant any other orders that it deems fit.

WHICH APPLICATION is supported by the annexed affidavit of ASSOCIATION OF

KATANGALA RESIDENTS and is premised on the following grounds, inter alia:
1. THAT the applicant has been following the arrest and investigation of the case and has
complained severally to the police and the DPPs office about the release of the
respondents without any charges being preferred against them but nothing has been done.
2. THAT the police have failed refused and/or neglected to exercise their statutory duties as
a result of clouded and compromised judgment.
3. THAT the applicant has severally reported the matter to the DPPs office but no positive
response has been received.
4. THAT if the prosecution is not commenced privately the respondent is likely to go
unpunished.
5. THAT a grave social evil is being allowed to flourish unchecked because of inaction by
the relevant authorities.
6. THAT the applicant believes that in the event that these orders are not granted, the
applicant will be prejudiced and suffer great injustice.
7. THAT it is in the best interest of justice that the orders be granted as prayed.

This honorable has jurisdiction to hear and determine this application.

Dated At Nairobi ThisDay of.2015

..
KIBETT EMMANUEL
FIRM TWOTWO & CO. ADVOCATES
ADVOCATES FOR APPLICANT
DRAWN AND FILED BY:FIRM TWOTWO & CO. ADVOCATES,
LANGATA SOUTH ROAD,
P.O. BOX 30369-00100,
KAREN, NAIROBI.

TO BE SERVED UPON:
1. KWETU QUEEN,
P.O. BOX 12345-00100,
KITANGALA
2. QUEEN MWEUSI,
P.O. BOX 6789-00100,
KITANGALA

THE REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI
MILIMANI COURTS
MISCELLANEOUS CAUSE NO OF 2015
ASSOCIATION OF KATANGALA RESIDENTS...APPLICANT
VERSUS
KWETU QUEEN.. 1ST RESPONDENT
QUEEN MWEUSI.2ND RESPONDENT
SUPPORTING AFFIDAVIT
I, MPOLE MKUNJUFU, holder of Kenyan National Identity Card Number 536579, and of
Post Office Box No. 8652-00100 Majada, do make an oath and swear behalf of ASSOCIATION
OF KATANGALA RESIDENTS of Post Office Box No. 8652-00100 Majada and states as
follows:
1. THAT I am a female adult of sound mind and a Kenyan citizen.
2. THAT I am the applicant in this application seeking leave to institute a private
prosecution on behalf of ASSOCIATION OF KATANGALA RESIDENTS.
3. THAT the respondents, KWETU QUEEN and QUEEN MWEUSI are members of the
Alshabiri sect.
4. THAT the respondents had been arrested and subsequently released without being
charged of any offence.
5. THAT I have visited the Director of Public Prosecutions office on various occasions to
inquire on the matter.
6. THAT despite my visits and insistent requests to the Director of Public Prosecutor to
prosecute the said respondents, it has fell on deaf ears.
7. THAT I have also written letters to the Director of Public Prosecutor requesting the
same.
8. THAT as time lapses evidence also is jeopardized and will therefore be difficult to
prosecute them

9. THAT it is for the best interest of the citizens of this country that the said respondents are
prosecuted.
SWORN at Nairobi by

MPOLE MKUNJUFU

This............day of........................2015

BEFORE ME

)
JUDY WANJIKU GITARI

COMMISSIONER FOR OATHS

DRAWN AND FILED BY:FIRM TwoTwo & CO. ADVOCATES,

LANGATA SOUTH ROAD,
P.O. BOX 30369-00100,
KAREN, NAIROBI.

TO BE SERVED UPON:
1. KWETU QUEEN,
P.O. BOX 12345-00100,
KITANGALA
2. QUEEN MWEUSI,
P.O. BOX 6789-00100,
KATANGALA

HABEAUS CORPUS
The Constitution acknowledges unlimited rights on Article 25 which includes Habeas Corpus.
The writ of habeas corpus consists of a mandatory order by the court or judge directed to any
person who is alleged to have another person unlawfully in his custody, requiring him to have the
body of such person before the court or judge immediately after receipt of the writ together with
the day and cause of his being taken and detained, to undergo and receive all such things as the
court may order.
There are various types of Habeas Corpus;
a) Habeas corpus ad subjiciendum secures liberty
b) Habeas corpus ad testificandum secures attendance of a prisoner in custody under civil

process to give evidence before any court, tribunal, commission, etc.

c) Habeas corpus ad respondendum secures attendance of a prisoner in custody under

serving prison sentence to give evidence before any court, tribunal, commission, etc.
In our case, the family is entitled to approach the court and seek an order of habeas corpus. The
order sought will be the Habeas Corpus ad subjiciendum. It will be used to enforce fealty and
accountability to the law by requiring Mfuataji Wima be set at liberty.55

4.3 PROCEDURE OF SEEKING ORDER OF HABEAS CORPUS

The procedure is governed by the Criminal Procedure (Directions in the nature of Habeas
Corpus)56
- Applications are brought under Chamber Summons (in triplicate) and made to a judge in
chambers ex-parte. The Chamber Summons are supported by affidavit(s).
- At the ex-parte stage, court issues summons to the authority detaining the subject and
that authority is required to show cause why detainee should not be released forthwith.
Because habeas corpus is a prerogative writ, it can only be entertained by the High Court.57

ANNEXTURES
THE REPUBLIC OF KENYA
55

Supra, Note 11.

Cap 75. L.N. 474/1963
57
See full text at www.kenyalawresourcecenter.org/2011/07/habeas-corpusapplications.html?m=1 (Accessed on 20th August)
56

IN THE HIGH COURT OF KENYA AT NAIROBI

MILIMANI COURTS
MISCELLANEOUS CRIMINAL APPLICATION NO OF 2015
IN THE MATTER OF HABEAS CORPUS FOR MFUATAJI WIMA
MREMBO WIMAAPPLICANT
VERSUS
THE INSPECTOR GENERAL OF POLICE........................................... 1ST RESPONDENT
OFFICE OF THE DIRECTOR OF PUBLIC PROSECUTIONS ...2ND RESPONDENT
CHAMBER SUMMONS
(Under the Constitution of Kenya Articles 25 (c) and (d), Article 51 (2) and Article 49 (1)(f).
The Criminal Procedure Code section 389)

LET ALL PARTIES concerned attend the Honourable Judge in Chambers on the.......day
of......2015 at 9.00 O'clock in the forenoon or soon thereafter for the hearing of an application by
counsel for the applicant for the following orders THAT:
1. THAT this application be heard ex parte in the first instance in view of its urgency.
2. THAT there be and is hereby issued a writ of Habeas corpus ad subjiciendum be issued
for the production of MFUATAJI WIMA.
3. THAT the Inspector General of Police and the Attorney General do enforce this order
4. The cost of this application be provided for.

WHICH APPLICATION is based on the grounds THAT:

1.

The applicant is Mfuataji Wimas lawfully wedded wife

2.

On the 22nd March 2015, the court ruled that Mfuataji Wima has no case to answer and

acquitted him under section 210 of the Criminal Procedure Code.

3.
After Mfuataji Wima left the court room on 22nd March 2015, he was bundled into a
vehicle registration No. GK-20167 and the vehicle sped off.
4.
The family of Mfuataji Wima has sought the assistance of the Criminal Investigation
Department to no avail.
5.
That the family of Mfuataji Wima is worried about the safety and the whereabouts of
Mfuataji Wima and unless the writ of Habeas Corpus is granted, the family will continue to
suffer for the life of their loved one.

DATED at Nairobi this........................................day of............................................. 2015

..
KIBETT EMMANUEL
FIRM TWOTWO & CO. ADVOCATES
ADVOCATES FOR APPLICANT

DRAWN AND FILED BY:FIRM TWOTWO & CO. ADVOCATES,

LANGATA SOUTH ROAD,
P.O. BOX 30369-00100,
KAREN, NAIROBI.
TO BE SERVED UPON:
1. THE INSPECTOR GENERAL,
P.O. BOX 12345-00100,

HARAMBEE AVENUE, NAIROBI.

2. OFFICE OF THE DIRECTOR OF PUBLIC PROSECUTIONS,
P.O. BOX 6789-00100,
SHERIA HOUSE, HARAMBEE AVENUE
NAIROBI.

THE REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI
MILIMANI COURTS
MISCELLANEOUS CRIMINAL APPLICATION NO OF 2015
IN THE MATTER OF HABEAS CORPUS FOR MFUATAJI WIMA

MREMBO WIMA.APPLICANT
VERSUS
THE INSPECTOR GENERAL OF POLICE.............................................1ST RESPONDENT
OFFICE OF THE DIRECTOR OF PUBLIC PROSECUTIONS ...2ND RESPONDENT
SUPPORTING AFFIDAVIT

I, MREMBO WIMA a resident of Nairobi within the Republic of Kenya make oath and state as
follows:
1. That I am the lawfully wedded wife of Mfuataji Wima and the applicant in this cause.
2. That my husband had been charged with possession of specified firearms without a
licence permit or other lawful justification contrary to Section 89 of the Penal Code as
read with Section 4 (a) of Firearms Act; possession of Narcotic drug contrary to Section
3(1) as read with Section 3(2) of the Narcotic and Psychotropic Substances Control Act;
and Recruitment and facilitation of the recruitment of members to a terrorist organization
contrary to Section 13 of the Prevention of Terrorism Act.
3. That on 22nd March 2015 the court ruled that Mfuataji Wima had no case to answer and
acquitted him under section 210 of the Criminal Procedure Code.
4. That on the 22nd March 2015, outside the court room, my husband was bundled into a car
believed to be a government vehicle registration No. GK-20167 and which sped off.
5. That my husband has not been brought before court to answer to any other charges.
6. That my family have informed the Criminal Investigation Department who have ignored,
refused and/or neglected to investigate the matter.

7. That I am informed that my husband was taken to Karunda forest.

8. That the family is worried about the life of Mfuataji Wima as it has been two months
since the incident.
9. That he is the familys sole bread-winner and we are likely to suffer without his presence.
10. That I believe that unless this court grants the writ of Habeas Corpus, the family is
unlikely to be informed of the whereabouts of Mfuataji Wima.
11. That I swear this affidavit in support of the application that there be issued a writ of
Habeas corpus ad subjiciendum for the production of Mfuataji Wima.

SWORN at Nairobi by

MREMBO WIMA

This............day of........................2015

)
)
)
BEFORE ME

)
)

JUDY WANJIKU GITARI

COMMISSIONER FOR OATHS

THE REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI
MILIMANI COURTS
MISCELLANEOUS CRIMINAL APPLICATION NO. OF 2015
IN THE MATTER OF HABEAS CORPUS FOR MFUATAJI WIMA

MREMBO WIMA. APPLICANT

VERSUS
THE INSPECTOR GENERAL OF POLICE...............1st RESPONDENT
OFFICE OF THE ATTORNEY GENERAL 2nd RESPONDENT
ORDER

UPON READING the application to this Court on the 22 nd March 2015 by the
Advocates for the Applicant and supported by an affidavit of Mrembo Wima
sworn on the 21st March 2015 AND WHEREAS the application coming up for
hearing on 29th March 2015 before Hon. Steve Aoko in the presence of the
Advocates of the Applicants and in the presence of the Respondents, AND UPON
HEARING the said Advocate;

IT IS ORDERED:
1. THAT there be and is hereby issued a writ of Habeas corpus ad
subjiciendum be issued for the production of MFUATAJI WIMA.

2. THAT the Inspector general of police and the Attorney General do

enforce this order.
3. All parties herein concerned, should be in attendance on the said date.
GIVEN under my hand and seal of the Court this Day of ..2015

...
HON. STEVE AOKO, J.

PENAL NOTICE

TAKE NOTICE that you are bound by and required to comply with the Court
Orders herein given on 1ST SEPTEMBER 2015 by the HON. STEVE AOKO, J.
in the above noted matter. A true copy of the said Order is annexed herewith and
served upon you for immediate and strict compliance.
TAKE FURTHER NOTICE that you are required to immediately and strictly
comply with the terms of the said Order and that any person who does not comply
with the said Order of the HON. STEVE AOKO, J. shall be liable for contempt of
court which is punishable by six (6) months imprisonment with or without a fine as
the court may deem fit.

Extraction of the order

Extraction of the order is done by writing to the registrar of the High Court. Where when the
letter is stamped, it becomes a decree absolute that will be served on the judgment creditors.

Firm Twotwo & Company Advocates

Gilfillan House, 6th Floor,
Kenyatta Avenue,
P.O Box 18682-00100
Nairobi

25th August 2015

Registrar of the High Court
Milimani Law Courts
P. O. Box 90877-454000
Nairobi, Kenya
Dear Sir/Madam,
RE:

EXTRACTION OF HABEAS CORPUS ORDERS

(CAUSE NUMBER 5862 OF 2015)
MREMBO WIMA V. THE INSPECTOR GENERAL OF POLICE AND THE
DIRECTOR OF PUBLIC PROSECUTION

We refer to the above case.

We attended court on 1st September, 2015 for the hearing of our petition. All parties were
present and the judge issued an order of Habeas Corpus. We kindly ask you to urgently
extract for us the said order, issued on 1st September, 2015, in the High Court of Kenya
(Court 4) at Milimani.
We undertake to pay your reasonable fees.
Yours faithfully,
..
Kibett Emmanuel
Firm TwoTwo & Co. AdvocatesADVOCATES FOR APPLICANT

BIBLIOGRAPHY
1. Benjamin Odoki, A guide Criminal Procedure in Uganda (LawAfrica, Uganda, 2011)
2. Douglas Brown, Criminal Procedure in Uganda and Kenya (Sweet & Maxwell, Lagos,
1965)
3. Ssekaana Mussa, Criminal Procedure and Practice in Uganda. (LawAfrica, Kenya, 2010),
4. Peter Kiage, Essentials of Criminal Procedure in Kenya. (LawAfrica, Kenya, 2014)
5. Munyao Sila, Modern Law of Criminal Procedure in Kenya (LawAfrica, Kenya, 2014)