PRIVATE PROSECUTION

When the police and prosecutors won't pursue your case after you file a complaint against someone at the police station, what do you do? You seek private prosecution.

Private prosecution refers to a legal proceeding in which an individual initiates a criminal prosecution against another individual or organization. The general procedure for prosecution in Kenya is through the office of the Director of Public Prosecution (DPP). The DPP are the prosecutors while the police act as the investigators.

Prosecution by a private person happens in circumstances where prosecution by the DPP is not exercised or is unlikely to be exercised, or the DPP declines to prosecute or discontinues a criminal case.

Private prosecution traces back in 1977 where Lord Wilberforce in the case of Gouriet vs Union Workers opined that “it is the duty… of the DPP 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.”

The power of private prosecution is unquestionably a fundamental and necessary right because it allows citizens to bring even police officers, government officials, or DPP cronies before criminal courts when they commit wrongs against citizens and the DPP or government is unwilling to make the first move.

In the case of Kimani vs Kihara (1983) the court held that “the right of private prosecution is essential to counteract attempts by wealthy and influential people to stifle prosecutions when offences by them are alleged in reports to the police…”

THE LAW ON PRIVATE PROSECUTION

Private prosecution is recognized under the Constitution of Kenya, Criminal Procedure Code (CPC) and the Office of the Director of Public Prosecutions Act (ODPP).

Under the Constitution of Kenya, every person has the right to access justice, and this includes the right to initiate a criminal prosecution. Additionally, the Criminal Procedure Code provides for private prosecutions in cases where the Director of Public Prosecutions (DPP) declines to prosecute or discontinues a criminal case. Section 28 of the ODPP Act provides that any person can commence private prosecution but requires a thirty (30) day notification to the ODPP of commencement of such proceedings.

The enabling provision under the CPC is Section 88 (3) which provides that “any person conducting the prosecution may do so personally or by an advocate.” This provision further provides for the requirement to seek leave or permission to institute private prosecution.

PROCESS OF PRIVATE PROSECUTION

Private prosecution in Kenya is initiated by filing a complaint at the Magistrates’ Court. The complaint must contain specific information, including the name and address of the accused, the offence committed, the date and time of the offence, and any evidence that supports the allegations. After filing the complaint, the complainant must serve a copy of the complaint to the accused.

Once the accused has been served with the complaint, he or she has the right to file a defence or to request the court to dismiss the case. The court may also order the accused to appear in court to answer to the charges. If the court finds that the complaint is prima facie, it will issue a summons to the accused to appear in court.

During the trial, the complainant bears the burden of proving the allegations against the accused beyond reasonable doubt. The complainant may present evidence and call witnesses to support their case. Evidence can be gathered by hiring a private investigator. Ordinarily, prosecutors rely on police (investigating officers) for this. The accused may also present evidence and call witnesses to defend themselves.

If the court finds the accused guilty, it may impose a sentence, including imprisonment, fines, or both. The court may also order the accused to pay compensation to the complainant or to perform community service.

Private prosecution is an essential tool for individuals and organizations who seek justice but are unable to access it through the regular channels. However, private prosecution can be costly and time-consuming. Additionally, the complainant bears the burden of proving the allegations against the accused, which can be challenging, especially in complex cases.

The Criminal Procedure Code as well as the guiding principle in the locus classicus of Floriculture International Limited and others provides for certain safeguards to prevent abuse of the private prosecution process. For example, the court may dismiss a private prosecution if it is satisfied that it is frivolous or vexatious. The complainant must have also exhausted public machinery of prosecution before embarking on private prosecution. Additionally, the complainant must have notified the director of public prosecution within 30 days of instituting such proceedings. The court may also award costs against the complainant if it finds that the complaint was malicious or lacked reasonable cause.

Private prosecution in Kenya has been used in high-profile cases, including cases involving corruption and economic crimes. In 2018, the Ethics and Anti-Corruption Commission (EACC) recommended the prosecution of several individuals implicated in the National Youth Service (NYS) scandal. However, the DPP declined to prosecute the suspects, citing insufficient evidence. As a result, a civil society organization filed a private prosecution against the suspects. The private prosecution resulted in the conviction of several individuals, including a former senior government official.

PROS and CONS

PROS

1. Effective: It is more effective compared to the conventional prosecution.
2. Flexibility: Private prosecution is more flexible than the office of the DPP since it allows the private prosecutor to choose the timing, location, and nature of the case. This means that a private prosecutor can initiate a legal action even when the office of the DPP has declined to prosecute a case due to lack of evidence or other reasons.
3. Accountability: Private prosecution promotes accountability since the private prosecutor has a personal interest in ensuring that justice is served. A private prosecutor will go to all lengths to ensure that justice is served as compared to a public prosecutor.
4. Speed: Private prosecution is usually faster than the office of the DPP since the private prosecutor is not bound by the bureaucracy and delays that often characterize government agencies.
5. Independence: Private prosecution is independent of the government, which ensures that the private prosecutor is not subject to political pressure or interference.
6. Access to Justice: Private prosecution promotes access to justice since it allows individuals or organizations who may not have the financial or political power to influence government agencies to pursue legal action against wrongdoers.
7. Offers Room for Negotiations: The Criminal Procedure (Plea Bargaining) Rules, 2018 provide that a private prosecutor can negotiate plea bargain agreements under Rule 4. The Rule provides that a private prosecutor should issue a notification in writing to the DPP fourteen (14) days prior to commencement of plea negotiation. Moreover, the private prosecutor is also required to issue a notification to the DPP seven (7) days of a successful outcome of any plea negotiation. The Rule allows the DPP thirty (30) days to approve the terms of the plea agreement for presentation to the court.

CONS

1. You cannot appeal from an order of acquittal of the accused. In the Case of Njoroge v Karanja (1984) KLR 662 where an accused had been acquitted by trial court under s.210 CPC of offence of malicious damage to property. Private prosecutor’s appeal was dismissed. Under section. 348A of the CPC it’s only the AG who can appeal from an order of acquittal by a subordinate court a private prosecutor is not empowered to file such an appeal.
2. Cost: Private prosecution can be expensive, as the private prosecutor must bear the costs of the legal fees, investigations, and other expenses associated with bringing a case to trial. This can be a significant burden for individuals or organizations that do not have the financial resources to support a prolonged legal battle.
3. Lack of resources: Private prosecutors may not have access to the same resources and expertise as state prosecutors, such as forensic laboratories, investigators, and other specialized resources. This can make it difficult to gather the necessary evidence and build a strong case.
4. Bias: Private prosecution may be driven by personal or political motivations, rather than a commitment to justice. This can lead to biased or unfair prosecutions that are not in the public interest.
5. Inconsistent application of the law: Private prosecution can result in uneven and inconsistent application of the law, as different private individuals or organizations may bring cases with varying degrees of competence and fairness.
6. Risk of abuse: Private prosecution can be abused by powerful individuals or organizations to harass or intimidate their opponents, rather than seeking justice. This can undermine the credibility of the justice system and erode public trust in the rule of law.

CONCUSION

Private prosecution is an essential tool for individuals and organizations seeking justice in Kenya. It allows complainants to hold accountable individuals and organizations that have committed crimes, even in cases where the state declines to prosecute. However, private prosecution can be costly and time-consuming, and the complainant bears the burden of proving the allegations against the accused. Additionally, the court has the power to dismiss a private prosecution if it is satisfied that it is frivolous or vexatious.

Overall, private prosecution provides an alternative route to justice for individuals and organizations who may not have faith in the government agencies or who feel that justice has not been served by the office of the DPP.

[*This article generally explains the law in force in Kenya and does not constitute an opinion or a legal opinion. To find out the rules specific to your situation, write to us on info@wjmaxwelll.co.ke or call/WhatsApp on 0733 610 961]