Appellate Court recently ruled that the High Court has a duty of evaluating the legality of the charges brought against a suspect and the prospect of securing a conviction.
Previous rulings by the court were that the task of evaluating such evidence was to be left to the trial magistrate.
If, in the court’s view, the DPP took into account extraneous factors, it can quash such charges but the discretion to prosecute criminal offences is not to be lightly interfered with.
While quashing charges intended against former Central Bank of Kenya Governor Njuguna Ndung’u, two judges of the Appellate Court faulted a decision of the High Court rejecting to halt the intended trial.
Justice Erastus Githinji, whose decision was concurred with by Justice Jamila Mohammed, said the charges against Prof Ndung’u were largely dependent on documentary evidence and most of the facts were not in controversy.
Justice Githinji said a decision on that issue could have been made without embarking on a trial by scrutinising the documents and upon consideration of the circumstances of the case and the law.
“In my respectful view, the High Court erred in law by failing to scrutinise the charges, the relevant documents including the decisions of evaluation committee, tender committee, review board and the High Court proceedings and reach a conclusive and objective decision on whether or not the charges had any legal or factual foundation and also a realistic prospect of conviction,” he said.
The judge said he was satisfied that the charges had no legal or factual foundation and thus there was no realistic prospect of conviction.
“It is apparent that the High Court left the matters raised by the appellant and the respondents to the trial court for determination without making any tentative and objective finding on the legality of the charges and the prospect of a conviction,” he added.
In a dissenting decision, Justice Hannah Okwengu said she would not have stopped the intended trial because Prof Ndung’u failed to demonstrate any violation or that there was a threat to violation of any constitutional rights by the actions taken by the Ethics and Anti-Corruption Commission (EACC) and the DPP to charge him.