- In condemning the trend, he said such practice "is not only unorthodox, but also a vice that the prosecutors need to urgently start disabusing themselves of".
- Justice Sifuna said the prosecution cannot decide to turn around during trial and declare an accused person (s) innocent.
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In a precedent-setting ruling, Justice Nixon Sifuna has settled the law on the powers of the Office of the Director of Public Prosecutions to withdraw or terminate cases.
In condemning the trend, he said such practice "is not only unorthodox, but also a vice that the prosecutors need to urgently start disabusing themselves of".
"Regrettably, this practice is increasingly gaining notoriety and becoming fashion in Kenya's prosecutors. This ruling should be a clampdown on that practice," Justice Sifuna said.
He describe it as "a laundry manner of prosecution practice that is steadily, undesirably and notoriously taking root in Kenya", especially in terminal withdrawals.
The Milimani High Court Judge issued the ruling following an application challenging the decision of a Chief Magistrate's Court declining the withdrawal of a case.
The case is against Kenya Pipeline Corporation Chief Engineer Josephat Kipkoech Sirma and two others facing various corruption charges.
Senior Principal Magistrate Victor Wakumile rejected an application to withdraw charges against Kipkoech and leave his co-accused to answer to the charges.
Aggrieved, Kipkoech moved to the High Court and listed the ODPP as the respondent in the appeal.
Upon going through the matter, Sifuna noted that the ODPP stated that it was withdrawing the case because it found the evidence weak.
His answer to the submission was that the mandate of analysing evidence adduced in a case and pronouncing verdict rests with the court and not parties therein.
He emphasised that the duty of the prosecution in a criminal case is to present the evidence it has and let the court decide its merit.
The prosecution, he said, cannot then decide to turn around during trial and declare an accused person (s) innocent.
"The DPP having supposedly based his decision to prosecute on findings and evidence from prior investigations, is bound by that decision and cannot with caprice or whim suddenly just disown his decision and drop the charges," Justice Sifuna said.
"After all, criminal charges should be preceded by the investigations and shall only follow after investigations are completed and shall be based only on the findings of such investigations."
Justice Sifuna warned that purporting to make such declarations is unacceptable, extra-judicial and usurping of jurisdiction as that is a duty mandated to the courts.
In his decision, Justice Sifuna upheld Senior Principal Magistrate Victor Wakumile's refusal for the withdrawal and ordered that the trial proceeds to its conclusion.