Relaxing the stringent procedural rules governing private prosecutions in Kenya

Abstract

The application of the right to private prosecutions in criminal proceedings in Kenya has been challenged by rigid procedural rules of the State. These rules are set out in case law dating as far back as 1985 with the landmark case of Kimani v Kahara. Subsequent judicial precedent, occasioned by strict adherence to the principle of stare decisions, is a repetition of these requirements with a view of making the procedure more constricted and consequently, this has impeded access to justice. This dissertation makes the argument for the relaxation of the stringent procedural rules governing private prosecutions. It looks into the historical background and rationale behind instituting private prosecutions emphasizing its benefits against public prosecutions. Secondly, it studies the attitude of the court towards prosecutions by private persons through an analysis of cases determined both pre- and post- the 2010 constitution. Thirdly, it makes the argument that the powers of the DPP are too wide and unchecked to the point of interfering negatively with the institution of private prosecutions especially his unfettered discretion over criminal proceedings with the only restriction being that he cannot discontinue a proceeding without the authority of the court. Through a comparative analysis , some recommendations are drawn from the Crown Prosecution Service, which is charged with the administration of private prosecutions in the United Kingdom, for the resolving of the current regime 's shortcomings. In addition, the paper advocates the enacting of the Kenyan Private Prosecutions Bill of 2007 which will contribute greatly in the streamlining of the substantive and procedural aspects of private prosecutions.