Ongera v Director of Public Prosecutions & another (Civil Appeal 282 of 2019) [2025] KECA 1980 (KLR)
The bottom line
#Kenya's Court of Appeal refused to stop a corruption prosecution, confirming courts will only block DPP charging decisions in exceptional cases.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the 1st and 2nd respondents failed their constitutional and statutory duties regarding the criminal investigations and prosecution in respect of the appellant
- 2.Whether the appellant was entitled to the reliefs sought
Key legal issues
#Scope of judicial review of prosecutorial decisions
The DPP's discretion, though constitutionally protected, is subject to judicial review where exercised unlawfully, in abuse of process, or in breach of fundamental rights; the High Court has jurisdiction under Article 165(3)(d)(ii).
The court reaffirmed Diamond Hasham Lalji that the DPP's power under Article 157 is hemmed in by Article 157(11) and constitutional values. However, courts must respect separation of powers and not unjustifiably interfere; the DPP is entitled to make errors within his constitutional jurisdiction, and a decision is not reviewable merely on the ground of misapprehension of facts or law.
Merit review and controverted evidence
Judicial review in the current constitutional dispensation may entail an element of merit review, but limited to uncontroverted evidence; contested factual disputes belong to the criminal trial court.
Applying Saisi v DPP, the court held that where the evidence relied on by the applicant is contentious — as with the conflicting Oracle letters on whether OSI Kenya was the sole accredited partner — a merit analysis would usurp the functions of the DPP and the criminal court. Judicial review must not be transformed into a mini criminal trial.
Whether the appellant established grounds for review of the decision to charge him
The appellant failed to demonstrate bias, irrationality, discrimination, or ulterior motive; his defence arguments were matters for the criminal trial.
The appellant's complaints — that his letter of 13th February 2017 was not considered and that other members of the tender committee were not charged — did not establish a basis for review, since criminal culpability is individual and the DPP retains discretion unless irrationality is shown. No credible evidence of an ulterior motive was presented.
Effect of the trial Judge's finding of 'high prospects of a conviction'
Although the words were too strong, the finding was not prejudicial because a criminal trial is governed by its own rules; the good-faith protection under section 138 of the Public Procurement and Asset Disposal Act is also for the criminal court.
The court acknowledged the learned Judge's phrase was strong but held it could not prejudice the intended prosecution, as guilt is determined at trial with the presumption of innocence paramount. Whether the appellant acted in good faith under section 138 of the Public Procurement and Asset Disposal Act must be determined by the criminal court after hearing evidence.
Legal principles established
#- The prosecutorial discretion of the DPP is not absolute; it is limited by Article 157(11) of the Constitution, constitutional principles and statute, and is subject to judicial review by the High Court.
- A judicial review court may conduct only a limited merit analysis confined to uncontroverted evidence; controverted evidence and contested interpretations of law are for the trial court.
- The High Court may only interfere with criminal proceedings where it is shown that they were instituted for reasons other than the enforcement of criminal law or otherwise as an abuse of the court process.
- An applicant seeking review of an impending charge must demonstrate that the proceedings serve a purpose other than the genuine pursuit of criminal justice; sufficiency of evidence goes to the merits of the prosecution decision, not its legality.
Court orders
#- 1.The appeal is dismissed
- 2.The respondents shall have the costs of the appeal
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya
- Judicial Review Miscellaneous Application No. 20 of 2017
- Jurisdiction invoked
- First appeal under rule 31(1) of the Court of Appeal Rules; judicial review jurisdiction of the High Court under Article 165(3)(d)(ii) of the Constitution
Relief refused
#Orders of certiorari and prohibition quashing and barring the criminal prosecution of the appellant
The appellant failed to lay a basis for judicial review of the DPP's decision to charge; the disputed issues are for the criminal trial court.
Costs
The respondents shall therefore have the costs of the appeal.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
We are emphatic that the High Court, whether sitting as a constitutional court or a judicial review, may only interfere where it is shown that under article 157(11) of the Constitution, criminal proceedings have been instituted for reasons other than enforcement of criminal law or otherwise abuse of the court process.
Consequently, the orders of certiorari and prohibition could not and cannot issue in the circumstances of this case.
In the end, this appeal lacks merit and is hereby dismissed.
Concerning the costs of this appeal, we recall the general principle that costs follow the event, and the award of costs is discretionary. The respondents shall therefore have the costs of the appeal. It is so ordered.
criminal culpability is always individual. The 1st respondent retains the powers to prosecute, and unless it is shown that the power was exercised irrationally, which has not been demonstrated herein, then our interference must be disbarred.
Issues in the judgment
#The judgment refers inconsistently to the trial court's judicial review application and the appellant's notice of motion: the ruling is dated 30th January 2017 yet it is described as having dismissed 'the appellant's notice of motion dated 11th June 2018', a date later than the ruling.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ongera v Director of Public Prosecutions & another (Civil Appeal 282 of 2019) [2025] KECA 1980 (KLR)", Case Analysis (2025). Court of Appeal Appeal arising from Judicial Review Miscellaneous Application No. 20 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/1980/eng@2025-11-21
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.