Ndemo v Director of Public Prosecutions & 4 others (Miscellaneous Civil Application 192 of 2016) [2016] KEHC 1384 (KLR) (Judicial Review) (5 October 2016) (Judgment)
- Court
- High Court of Kenya
- Case number
- 1384
- Citation
- [2016] KEHC 1384 (KLR)
- Decided
- 5 October 2016
The court declared that the initiation, maintenance, and prosecution of the applicant's case are abuses of the criminal justice system and contraventions of his constitutional rights.
Facts
The applicant, Bitange Ndemo, seeks a declaration that the initiation, maintenance, and prosecution of his case in the Chief Magistrate's Court (Anti-corruption court) are abuses of the criminal justice system and contraventions of his constitutional rights.
Issues
- Whether the decision to charge the applicant is lawful and constitutional
- Whether the intended trial of the applicants is an abuse of legal and or administrative process
Reasoning
The court found that the applicant's charges were not selective and that the prosecution was not an abuse of the process. However, it declared that the prosecution was an abuse of the criminal justice system and contravened the applicant's constitutional rights.
Outcome
The court issued orders prohibiting the continuation of the case against the applicant.
Orders
- It is hereby Declared that the initiation, maintenance and prosecution of the petitioner/exparte applicant Dr Bitange Ndemo in the Chief Magistrate’s court (Anti corruption) vide criminal case No. 19 of 2014 is an abuse of the criminal justice system and in contravention of the applicant’s constitutional rights and freedoms and security of the person and the right to secure the protection of the law.
- It is hereby Declared that the initiation and prosecution of the criminal case against the petitioner/applicant in the Chief Magistrate’s Court(ACC) vide criminal case No. 19 of 2014 amounts to selective and therefore discriminatory prosecution and a gross abuse of the process of court.
- It is hereby Declared that the initiation, maintenance and continued prosecution of the petitioner/applicant in the Milimani Chief Magistrates Court(ACC) vide criminal case No. 19/2014 is oppressive, malicious and an abuse of the process of court.
- Orders of Prohibition be and are hereby issued prohibiting the continuance of the Chief Magistrate’s Court (ACC) at Milimani vide criminal case No. 19 of 2015 in the manner intended against the petitioner/applicant Dr. Bitange Ndemo.
Remedies
- Prohibition
Authorities cited
Legislation (4)
- Public Procurement and Asset Disposal Act (repealed)
- Penal Code
- Criminal Procedure Code
- Constitution of Kenya 2010
Cases cited (4)
- Thuita Mwangi &Another v EACC & Others
- Republic v commissioner of Police & Another exparte Michael Monari & Another
- Kibiwot &2 Others v Director of Public Prosecution& 7 Others
- Republic v Attorney General & Others Exparte Diamond Hashim Lalji & Ahmed Hashim Lalji
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