Nolle Prosequi: an Analysis of Its Practical Application in Kenya Under the Constitution of Kenya 2010

Abstract

The absolute and unfettered discretion1of the Attorney1General to enter nolle prosequi was a prerogative of the Crown under common law. This practice extended to British colonies. At independence, Kenya adopted this English tradition in its independence Constitution. However, its practical application in post-colonial Kenya led to numerous injustices arising largely from the improper termination of criminal cases. As a result, the public demand for constitutional reform necessarily included a demand for reform of these prosecutorial powers. As a result, the Kenyan Constitution of 2010 made significant reforms, stripping the Attorney General of all prosecutorial responsibilities and putting them in the Director of Public Prosecutions (the DPP). Furthermore, the Constitution mandated that, in exercising the modified nolle prosequi, the DPP shall consider the public interest, administrative law interests, and the need to prevent and avoid judicial process discrimination. The postulation of this thesis is that despite the radical changes introduced by the Constitution of Kenya 2010, the exercise of the reformed nolle prosequi remains uncertain and ineffective because there are insufficient guidelines on how these broad principles ought to be applied in the exercise of the said powers. An analysis of the subsequent action by the DPP as well as ensuing judicial decisions reveal that the very abuse of this power is still rampant. The thesis therefore seeks to explore the efficacy of the afore-stated constitutional principles on the reformed nolle prosequi. It assesses whether the said principles are sufficient guarantees to the fair dispensation....................................................................