The High Court in Kakamega has delivered a key judgment reinforcing the constitutional mandate of the Office of the Director of Public Prosecutions (ODPP), setting aside a magistrate’s decision that had permitted a private prosecution against local resident Sylvia Atamba.
In its ruling delivered on 1 December 2025, the court allowed an appeal filed jointly by the ODPP and Ms. Atamba, holding that the magistrate had misapplied the law, exceeded her jurisdiction, and wrongly interfered with a matter already concluded through a lawful Diversion agreement. The judgment vacated the lower court’s ruling in full.
The case traces back to August 2022, when Ms. Victorine Atemba reported receiving threatening text messages allegedly originating from Ms. Atamba’s phone.
After investigations established the dispute arose from a domestic conflict, the ODPP opted for a Diversion agreement an increasingly used tool under Kenya’s Alternative Justice Systems (AJS). The Diversion was formalized on 22 February 2024, effectively disposing of the criminal complaint.
Despite this, Ms. Atemba later sought the magistrate’s permission to initiate a private prosecution, arguing she had not been adequately consulted during the Diversion process. The magistrate agreed and granted leave, finding that the ODPP had insufficiently considered the complainant’s views.
Both Ms. Atamba and the ODPP appealed, arguing that the magistrate erred in fact, law, and jurisdiction. Ms. Atamba contended that reopening the case would violate double jeopardy protections, while the ODPP maintained that the court had interfered with a constitutionally protected prosecutorial function.
The High Court concurred, ruling that the magistrate had assumed powers she did not possess. It found that concerns about the Diversion process should have been addressed through judicial review and that Ms. Atemba failed to exhaust the ODPP’s internal complaint mechanisms before seeking private prosecution.
The court held that allowing such a prosecution would constitute an abuse of the judicial process and undermine constitutional safeguards.Submissions for the appeal were prepared by Natasha Chala and argued by Loice Osoro.
By overturning the magistrate’s ruling, the High Court reaffirmed the ODPP’s authority to employ Diversion and other AJS-aligned interventions aimed at promoting restorative justice. The decision is expected to strengthen the Diversion framework and clarify the limits of private prosecution, particularly where alternative justice mechanisms have already settled a dispute.
By Michelle Ndaga
