MS TM Kayemba and Company Advocates v Nansubuga Zahara and 3 Others (Miscellaneous Application No. 10 of 2023)
Observed later treatment
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Holding
The court held that the Director of Public Prosecutions properly exercised constitutional powers under Article 120 in issuing a nolle prosequi. Although the Deputy Registrar lacked authority to enter the nolle prosequi without the trial judge's authorization, the court validated it as a matter of substance over form. The applicant law firm, being instructed by the victim's family, failed the tests of independence and impartiality required for amicus curiae status. Application dismissed.
Outcome
Application dismissed with validation of the nolle prosequi entered by the Deputy Registrar
Facts
The 1st and 2nd Respondents were jointly indicted for murder and aggravated robbery. On 13 June 2023, the prosecution tendered a nolle prosequi before the Deputy Registrar removing the 1st and 2nd Respondents from the indictment. The Applicant law firm, representing the victim's family, challenged the nolle prosequi as unlawful and sought declarations that it was improperly entered by the Deputy Registrar rather than the trial judge. The Applicant also sought to be appointed as amicus curiae to represent the victim's family's interests in securing additional evidence and ensuring conviction of the removed accused persons.
Issues
- Whether the DPP's decision to issue a nolle prosequi in respect of the 1st and 2nd Respondents was proper.
- Whether the nolle prosequi was properly entered on the record of the court.
- Whether counsel on watching brief can be granted audience as amicus curiae in the proceedings.
Orders
- Application dismissed.
- The nolle prosequi entered by the Deputy Registrar is validated.
- No orders granted to the Applicant.
Rules and key headnotes
Legislation cited (8)
Cases cited (2)
- Hon. Philomena Mbete Mwilu vs. D.P.P and 3 Ors H.C Petition No. 295 of 2018
- Katiba Institute vs. Judicial Service Commission and 8 Ors [2017] e KLR
Full judgment
The original judgment as reported. Read the original PDF before relying on any passage.