A Witness can be Charged as an Accused Person – Wafula v Director of Public Prosecutions, Ethics and Anti-Corruption Commission & 2 Others (Petition E045 of 2024) [2025] KESC 46 (KLR) (Civ) (11 July 2025)

The case of Wafula v Director of Public Prosecutions, Ethics and Anti-Corruption Commission & 2 Others is a significant decision by the Supreme Court of Kenya, addressing critical issues of prosecutorial discretion, constitutional rights, and judicial review in the context of anti-corruption proceedings. The case centers on the appellant, Benson Kwwaenge Wafula, an advocate and former Company Secretary of Noko Sugar Company Limited, who challenged his transposition from a prosecution witness to an accused person in an anti-corruption case. This commentary analyzes the key legal principles, the court's reasoning, and the broader implications of the judgment.

Factual Background

The appellant, a High Court advocate, served as the Company Secretary and an Integrity Assurance Officer for Noko Sugar Company Limited. He was also a Category "C" bank signatory for cheques below Kshs 1,000,000, used primarily for replenishing the company's petty cash. Following allegations of misappropriation of funds, the Ethics and Anti-Corruption Commission (EACC) conducted investigations, initially treating the appellant as a prosecution witness. However, subsequent evidence led to his inclusion as an accused person in Anti-Corruption Case No. 1 of 2017, charged alongside others for the alleged loss of Kshs 7,793,366.

The appellant sought judicial review and constitutional reliefs, arguing that his transposition was unlawful, violated his right to a fair trial under Article 50 of the Constitution, and constituted an abuse of prosecutorial powers under Article 157. The High Court and Court of Appeal dismissed his petitions, prompting an appeal to the Supreme Court.

Key Legal Issues

The Supreme Court identified four primary issues for determination:

1. Jurisdiction of the Supreme Court: Whether the appeal involved the interpretation or application of the Constitution under Article 163(4)(a).

2. Prosecutorial Discretion: Whether the Director of Public Prosecutions (DPP) had the mandate to transpose a prosecution witness into an accused person.

3. Violation of Constitutional Rights: Whether the appellant's rights, particularly to a fair trial under Article 50, were violated.

4. Entitlement to Reliefs: Whether the appellant was entitled to the remedies sought, including certiorari and prohibition.

Analysis of the Court's Reasoning

1. Jurisdiction of the Supreme Court

The respondent and interested parties challenged the Supreme Court's jurisdiction, arguing that the appeal did not involve constitutional interpretation or application but was a judicial review matter. The Court relied on Article 163(4)(a), which grants it jurisdiction over appeals involving constitutional issues, and precedents such as Lawrence Nduru v Kenya Breweries Ltd and Gatirau Peter Munya v Dickson Mwenda Kithinji. It held that the appeal raised constitutional questions, particularly regarding the DPP's mandate under Article 157(10) and (11) and the right to a fair trial under Article 50. The High Court's treatment of the matter as a constitutional petition, coupled with the Court of Appeal's consideration of Article 157, justified the Supreme Court's jurisdiction.

This ruling reinforces the Court's role as the ultimate arbiter of constitutional matters, even in cases originating as judicial review applications, provided they raise cogent constitutional controversies.

2. Prosecutorial Discretion

The appellant argued that the DPP's decision to transpose him from a witness to an accused person was arbitrary, lacked new evidence, and violated legitimate expectations created by his initial designation as a witness. The Court, however, upheld the DPP's discretion under Article 157(10), which allows the DPP to initiate criminal proceedings without external consent, subject to the constraints of Article 157(11). The latter requires the DPP to consider public interest, the administration of justice, and the prevention of legal process abuse.

The Court cited the Office of the Director of Public Prosecutions Act and the Guidelines on the Decision to Charge, 2019, which permit the DPP to review charging decisions based on new evidence. The affidavit of Timothy Wahhome, an EACC investigator, provided a legal foundation for the transposition, citing an inadvertent omission in earlier evidence collection. The Court found no evidence of malice or procedural unfairness, emphasizing that prosecutorial decisions are subject to judicial deference unless clearly arbitrary or unlawful, as per Jirongo v Soy Developers Ltd and RP Kapur v State of Punjab.

This aspect of the judgment underscores the broad discretion afforded to the DPP, balanced by constitutional safeguards to prevent abuse. It clarifies that a witness can be reclassified as an accused person if new evidence emerges, provided the process adheres to legal and constitutional standards.

3. Violation of Constitutional Rights

The appellant contended that his transposition violated his right to a fair trial under Article 50(2), particularly due to his dual role as a witness and accused, and the alleged non-existence of the charged offence. The Court rejected these claims, noting that the appellant's reclassification as an accused person removed his status as a prosecution witness, thus eliminating any conflict of roles. The Court emphasized that the appellant had sufficient opportunity to prepare a defense and that any concerns about prior statements could be addressed by the trial court.

On the issue of a "non-existent offence," the appellant argued that he lacked control over the funds under Section 79 of the Financial Management Act, a prerequisite for liability. The Court, aligning with Thuita Mwangi v Ethics and Anti-Corruption Commission, held that the validity of the charge sheet was a matter for the trial court, not the Supreme Court, given its limited appellate jurisdiction over technical legal complexities (Peter Ngugi v Francis Kaparo).

This ruling highlights the judiciary's reluctance to interfere with prosecutorial decisions absent clear constitutional violations and emphasizes the trial court's role in resolving evidentiary and procedural issues.

4. Entitlement to Reliefs

The Court found no basis for granting the appellant's requested reliefs—certiorari to quash the DPP's decision and prohibition to halt the prosecution—given the lawful exercise of prosecutorial discretion and the absence of rights violations. It also ordered each party to bear their costs, citing the matter's long history and complexity, and directed the refund of security for costs.

Implications and Critique

The decision reaffirms the DPP's broad prosecutorial discretion under Kenya's Constitution, balanced by judicial oversight to prevent abuse. It clarifies that the transposition of a witness to an accused person is permissible if supported by new evidence and conducted lawfully, addressing a gap in Kenyan jurisprudence on this issue. The Court's emphasis on the trial court's role in resolving evidentiary disputes reinforces the separation of powers and the hierarchy of judicial functions.

However, the judgment could have further explored the appellant's legitimate expectation argument. While the Court found no evidence of such an expectation, the delay of approximately one year and six months before charging the appellant raises questions about procedural fairness and the potential prejudice of prolonged uncertainty. Future cases may need to address the temporal limits of prosecutorial reassessments to ensure compliance with Article 47 (fair administrative action).

Additionally, the Court's deference to the trial court on the charge sheet's validity may leave appellants in similar situations without immediate recourse in higher courts, potentially prolonging legal battles. This underscores the need for robust mechanisms at the trial level to address defective charges promptly.

Conclusion

The Supreme Court's decision in Wafula v DPP is a landmark ruling that balances prosecutorial independence with constitutional protections. It affirms the DPP's authority to adapt charging decisions based on new evidence while emphasizing judicial oversight to safeguard fair trial rights. The case serves as a precedent for handling witness-to-accused transpositions and reinforces the Supreme Court's role in constitutional adjudication. However, it also highlights the need for clearer guidelines on the timing and transparency of prosecutorial decisions to prevent perceived arbitrariness.