Cox & 2 others v Okello
The bottom line
#Supreme Court: High Court cannot overturn acquittals in revision; only DPP can appeal.
What this practically means
#The Supreme Court dismissed an appeal by private prosecutors who tried to overturn an acquittal. The Court ruled that the High Court's revision power is limited by the Criminal Procedure Code, which forbids changing an acquittal. Only the Director of Public Prosecutions can appeal an acquittal. The Court also found no violation of fair trial rights because the private prosecutor failed to attend court for over a year, leading to the case being dismissed.
Executive summary
#Key legal issues
#Whether the Supreme Court has jurisdiction under Article 163(4)(a) of the Constitution to hear an appeal challenging the High Court's refusal to set aside an acquittal in revision proceedings.
The Supreme Court has jurisdiction because the appeal involves the interpretation or application of the Constitution, specifically Article 165(6) and (7) and the right to a fair trial under Article 50.
The appellants consistently invoked Article 165(6) and (7) alongside Section 364 of the CPC from the trial court upwards, arguing that the mandatory provisions of the CPC should not limit the constitutional supervisory jurisdiction of the High Court. The Court found that the constitutional and statutory questions presented traverse the same trajectory and implicate fundamental constitutional rights, particularly the right to a fair trial under Article 50. Therefore, the appeal falls within the ambit of Article 163(4)(a).
Whether the High Court has jurisdiction under Article 165(6) and (7) of the Constitution to set aside an acquittal in criminal proceedings, notwithstanding the limitation in Section 364(1)(b) of the Criminal Procedure Code.
The High Court does not have jurisdiction to set aside an acquittal in revision proceedings because Section 364(1)(b) of the CPC is couched in mandatory terms and expressly excludes orders of acquittal from the orders that can be altered or reversed in revision.
The Court distinguished between the High Court's supervisory jurisdiction exercised on appeal and in revision. While the appellate power under Section 354(3)(bb) allows for appeals from acquittals, the revisionary power under Section 364(1)(b) is expressly limited to orders other than an order of acquittal. The Court rejected the argument that Article 165(7) grants a broader mandate in revision, holding that the exercise of supervisory jurisdiction must be grounded in the procedures prescribed by statute. The notion of 'quasi-constitutional applications' has no place in revision proceedings under the CPC.
Whether the appellants' constitutional rights under Article 50 of the Constitution were infringed by the dismissal of the case under Section 202 of the CPC.
The appellants' rights under Article 50 were not infringed.
The Court acknowledged that Section 202 of the CPC imposes a mandatory duty on the court to ensure the complainant is notified of the hearing date before dismissal, and the record did not indicate such notice. However, the Court weighed this procedural lapse against the private prosecutor's failure to attend court on multiple occasions over one year and four months and his failure to diligently pursue the execution of warrants of arrest. The Court found that the private prosecutor bore the responsibility of acting diligently and could not hold the court at ransom. The balance of these considerations led to the conclusion that there was no infringement of rights.
Legal principles established
#- High Court's revision power under Article 165(6) and (7) is limited by Section 364(1) CPC, which excludes altering acquittals.
- Only the Director of Public Prosecutions can appeal an acquittal under Section 348A CPC; private prosecutors have no such right.
- Supervisory jurisdiction must be exercised according to statutory procedures, not through 'quasi-constitutional' applications.
- Supreme Court has jurisdiction under Article 163(4)(a) when an appeal involves interpretation of constitutional provisions like Article 50.
- A court's failure to notify a complainant before dismissing a case under Section 202 CPC must be balanced against the prosecutor's diligence.
Court orders
#- 1.The Petition of Appeal dated 3rd January 2025 and filed on even date is hereby dismissed.
- 2.Each party shall bear its costs of the appeal.
- 3.We direct that the security for costs be refunded to the appellant.
- On appeal from
- Court of Appeal at Nairobi
- Criminal Appeal No. E025 of 2022
- Jurisdiction invoked
- Article 163(4)(a) of the Constitution
Key timeline
#Practical implications
#Revision cannot overturn acquittals
Advise clients that private prosecutors cannot use revision to challenge an acquittal. Only the DPP can appeal under Section 348A CPC. Ensure any application for revision respects the mandatory bar in Section 364(1)(b). Consider alternative remedies like a complaint to the DPP.
Private prosecution risks
If your business initiates a private criminal case, you must attend all hearings diligently. Failure to do so for over a year can lead to dismissal under Section 202 CPC. You cannot later use revision to revive the case. Ensure you have resources to follow through or involve the DPP.
Limited appeal rights for private prosecutors
If you bring a private criminal complaint and it is dismissed, you cannot appeal the acquittal yourself. Only the DPP can. You must attend every court date or risk losing your case permanently. The court may not notify you before dismissal, so stay proactive.
Frequently asked questions
#Can a private prosecutor appeal an acquittal in Kenya?+
No. Under Section 348A of the Criminal Procedure Code, only the Director of Public Prosecutions can appeal an acquittal. Private prosecutors have no such right, as confirmed by the Supreme Court in Wade Cox v Okello [2025].
Can the High Court overturn an acquittal in revision proceedings in Kenya?+
No. The Supreme Court held that Section 364(1)(b) CPC expressly prohibits the High Court from altering or reversing an acquittal in revision. The revision power is limited to orders other than acquittals.
What is the difference between revision and appeal in Kenyan criminal law?+
Appeal is a statutory right to challenge a decision, but for acquittals only the DPP can appeal. Revision is the High Court's supervisory power, but it cannot change an acquittal. Both are limited by the Criminal Procedure Code.
What happens if a private prosecutor fails to attend court in Kenya?+
The court may dismiss the case under Section 202 CPC. The prosecutor must show diligence. In Wade Cox v Okello, failure to attend for over a year led to dismissal, and the court's failure to notify did not violate fair trial rights because the prosecutor was negligent.
Cite this brief
#Cite this brief
Caselaw, "Cox & 2 others v Okello", Case Analysis (2025). Petition E001 of 2025. Source: https://new.kenyalaw.orghttps://new.kenyalaw.org/akn/ke/judgment/kesc/2025/54/eng@2025-08-29
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.