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]

It is guided by Section 137 A-0 of the Criminal Procedure Code and Criminal Procedure (Plea Bargaining) Rules, 2018.
A plea agreement is an agreement entered into between the prosecutor and an accused person where —

(a) an accused person has been charged in court; and
(b) at any time before the court passes judgment.

A plea bargain heavily relies upon the accused person pleading guilty to the charges. It might be some of the charges or all charges. Accused are always advised by their lawyers to accept the terms of the plea bargain if it is seen as beneficial to them. 

For the two sides to reach an agreement, both the Prosecutor and the Accused must see a benefit in the plea bargain: prosecutors seek a guilty plea and an efficient case resolution, while the Accused is motivated to plead guilty to receive a reduced or commuted sentence.

However, the intention and execution of plea bargains often diverge. Critics argue that plea bargains can lead to coerced guilty pleas and may also conceal corrupt or unlawful behaviour by prosecutors.

A Plea Bargain is, however, viewed as a necessary tool in dispensing justice. It saves the judicial time and the expense of a lengthy trial. Without plea bargains, there simply would not be enough time for judicial officers to oversee all the cases.

How to handle information obtained from an accused person
The information obtained from an accused person during the course of plea negotiations shall not be used against him or her during the prosecution of the case if the plea negotiations ultimately fail. The information is regarded to have been taken on a without-prejudice basis.

However, if the negotiations fail due to the actions or omissions of the accused, this information might be used in their prosecution.

Initiation of plea negotiations
Plea negotiations may be initiated by a prosecutor, the accused person or the accused's lawyer.

Consultations by the Prosecutor
Before entering into a plea agreement with an accused person, the prosecutor must—
(a) Consult with the investigating officer of the case;
(b) Consider the nature and the circumstances relating to the case, the personal circumstances of the accused, the interests of the community; and
(c) If possible, allow the victim or the victim's lawyer an opportunity to make a representation to the prosecutor regarding the terms of the agreement.

Ultimately, the prosecutor has the sole discretion to decide whether to enter into a plea agreement or not.

Including Victim Compensation
A plea agreement may include a clause for the payment of compensation to a victim by an accused person.
Where a plea agreement includes a clause for compensation payable to the victim by an accused person, the value or form of compensation shall be as agreed to after negotiations between the victim and the accused person and endorsed by the prosecutor if, in his or her opinion, the compensation serves the ends of justice.

A proposal to include the payment of compensation to the victim in a plea agreement or any negotiation for compensation payable to the victim may be made or initiated by the accused person or the victim.

Where negotiations for compensation payable to the victim break down or the prosecutor determines that the proposed compensation defeats the ends of justice, the prosecutor shall not include the proposal for compensation in the final draft of the plea agreement.

Presenting the Plea Agreement to Court
The prosecutor must present the factual basis of the plea agreement in court. This includes detailing all case circumstances and any mitigating factors favouring the accused when they plead guilty according to the agreement's terms.

Sentencing recommendations
A prosecutor and the accused person or the accused lawyer can each make a specific recommendation to the court as to the sentence to be imposed and include the recommendation in the final plea agreement.

Notwithstanding the recommendation of the parties, the court retains the sole discretion in sentencing.
If the prosecutor recommends a harsher sentence than that in the plea agreement, the accused can withdraw their guilty plea and the plea agreement.
If the court recommends a lighter sentence, the accused cannot withdraw their guilty plea based on this alone, but the prosecutor can propose an appropriate sentence.

Finalisation of agreement
A plea agreement shall be finalised when the prosecutor and the accused person sign the agreement.
Where applicable, the legal representative shall also sign the plea agreement.
Where the plea agreement includes a compensation clause, the complainant shall sign the compensation clause of the agreement.

In the end, the Accused;

1. Waives the right to full trial.
2. Pleads guilty.
3. Is ready for convictions and will receive some form of punishment (imprisonment, fine, probation, community service, compensation, restitution, apology, supervision).
4. Waives the right to appeal.
5. MUST uphold his or her end of the deal, such as cooperating in the investigation of another offence, or testifying against a co-accused or the plea bargain may be revoked.

Read more here! https://wjmaxwell.co.ke/blog/0/0 

Disclaimer: This is not legal advice and should not be relied upon as such. 

Contact us for further details.

W.J. Maxwell & Associates Advocates

email info@wjmaxwell.co.ke || or call/text/WhatsApp 0733 61 09 61