Republic v GBM & another (Criminal Case E027 of 2023) [2025] KEHC 11048 (KLR) (28 July 2025) (Ruling)
Neutral citation:
[2025] KEHC 11048 (KLR)
Republic of Kenya
Criminal Case E027 of 2023
AC Bett, J
July 28, 2025
Between
Republic
Prosecutor
and
GBM
1st Accused
Edwin Inina Muhanga
2nd Accused
Ruling
1.The two Accused persons, GBM and Edwin Inina Muhanga Alias Ndolia are charged with the offence of murder contrary to Section 203 as read with Section 204 of the Penal Code. The information before the court is that on diverse dates between the nights of 27th and 28th June 2023, at Lunyalala Village in Mukulusu Sub-location, Muranda Location, Kakamega East Sub-County within Kakamega County, jointly with others not before court, the Accused persons murdered one Elizabeth Minayo.
2.The Accused persons pleaded not guilty to the charge and the matter proceeded to hearing. After 5 witnesses had testified, and with an indication that only 3 witnesses were remaining, the 1st Accused who had been remanded in custody at the Kakamega Children Remand Home, failed to attend court.
3.Pursuant to the 1st Accused’s absence in court, the officer-in-charge of the Kakamega Children Remand Home attended court and under oath, stated that the 1st Accused had escaped from their custody on 1st June 2024 by scaling a two metre wall. He stated that they reported the incident at the Kakamega Police Station vide OB No. 52/01/06/2024.
4.On 21st January 2025, Corporal James Tajeu who was the investigating officer attended court and testified that after receiving the report on the 1st Accused’s escape, they embarked on a search for him by first visiting his home at Mukulusu village where the family members confirmed that he had never gone home. Further inquiries made in December were fruitless and since at the time of the escape the 1st Accused did not have any form of identification, it was difficult to trace him. The investigating officer said that he also made attempts to trace the 1st Accused through his mother’s relatives at Magala village, Virembe Location but to no avail.
5.On 7th April 2024, the prosecution sought to terminate the proceedings under Article 157 (6) (c) and 157 (9) of the Constitution. In furtherance of their application, the prosecution entered a ‘Nolle Prosequi’ dated 7th April 2025. The basis of the Nolle Prosequi is that the 1st Accused absconded court and the case against the 2nd Accused is predicated on a confession statement made by the 1st Accused and which had not yet been produced. The prosecution submitted that if they were to proceed with the case as it was, it would automatically lead to the acquittal of the 2nd Accused. The Accused’s Counsel did not oppose the application.
6.The Director of Public Prosecutions requires the leave of the court in order to terminate criminal proceedings.
7.Article 157 (6) (c) of the Constitution provides:-
8.While exercising his powers to enter a Nolle Prosequi, the Director of Public Prosecutions is guided by Article 157 (11) of the Constitution which states:-
9.From the legal provisions set out in the Constitution, whereas the Director of Public Prosecutions has discretion as to when to enter a Nolle Prosequi, the discretion must be exercised with due regard to the interest of the public. The Director of Public Prosecutions should also observe due care lest he applies the powers donated to him by the Constitution to protect suspects or frustrate the cause of justice. The decision to enter a Nolle Prosequi must therefore be well thought out and should not be capricious, irrational, unreasonable, nor arbitrary. It must be demonstrated that there are cogent reasons for seeking the termination since the Director of Public Prosecutions is enjoined by the Constitution to act justly and fairly.
10.The circumstances under which the court can grant leave to enter a Nolle Prosequi were considered by a three Judge Bench in the case of Republic v. Assa Kibagendi Nyakundi (Criminal Revision 524 of 2020 [2023] KEHC 1063 (KLR) when the court held as follows:-
11.Flowing from the above rendition, it is clear that the ODPP should be allowed to enter a Nolle Prosequi only if he can demonstrate that he has acted within the parameters set out under Article 157 (11) of the Constitution.
12.I have reviewed the evidence on record as at the time the 1st Accused absconded. There is no evidence, direct or circumstantial, linking the 2nd Accused to the murder of the deceased. The Prosecution’s evidence was clearly reliant on a confession that was said to have been made by the 1st Accused in which he implicated the 2nd Accused. In the absence of the 1st Accused, the said confession is rendered useless as it was yet to be produced. Further, chances of apprehending the 1st Accused are quite remote as he was a minor at the time of his arrest and did not have any form of identification which can be used to trace him.
13.In view of the stated difficulties faced by the Prosecution, I find that the application to terminate the proceedings is proper. There is no abuse of the process of the court, and the application is in the interest of the administration of justice and the need to prevent and avoid abuse of the legal process. Proceeding with the hearing will clearly not serve any useful purpose in the circumstances.
14.In the premises, and in view of the fact that the Prosecution has indicated that in the event the 1st Accused is arrested, the proceedings can be re-opened, I allow the application to enter a Nolle Prosequi. The case against the 1st and 2nd Accused is hereby terminated and the 2nd Accused discharged accordingly.
DATED, SIGNED AND DELIVERED AT KAKAMEGA THIS 28H DAY OF JULY 2025.A. C. BETTJUDGEIn the presence of:Ms. Chala for the ProsecutionMr. Ogenga for the AccusedCourt Assistant: Polycap