Court upholds Diversion decision, overturns magistrate’s ruling allowing private prosecution in Kakamega

The High Court in Kakamega delivered a significant judgment reinforcing the constitutional mandate of the Office of the Director of Public Prosecutions (ODPP), setting aside a magistrate’s ruling that had allowed a private prosecution against a local resident.

In the decision issued on December 1, 2025, the High Court allowed an appeal filed by the ODPP and the targeted individual Sylvia Atamba, faulting the trial magistrate for overstepping legal boundaries and misapplying the law on private prosecutions. The court set aside the magistrate’s ruling in its entirety.

The case stemmed from an incident in August 2022, when one Victorine Atemba reported receiving threatening text messages allegedly sent from Atamba’s mobile phone.

Following investigations into the matter and upon realization it was part of a domestic related dispute, the ODPP opted for a Diversion agreement, an increasingly utilized mechanism under Kenya’s Alternative Justice Systems (AJS) framework, and formalized the arrangement on 22nd February 2024.

Although the Diversion effectively concluded the matter, Atemba later moved to the magistrate’s court seeking leave to institute a private prosecution, arguing that she had been insufficiently consulted during the diversion process.

The magistrate agreed, ruling that the ODPP had sidelined Atemba’s views and thereby undermined her sense of justice.

That decision triggered an appeal from both Atamba and the ODPP, who argued that the magistrate had erred in fact, law, and jurisdiction.

Atamba maintained that the Diversion agreement conclusively resolved the case, and that reopening criminal proceedings would expose her to double jeopardy.

The ODPP, on its part, emphasized that the magistrate had intruded upon a constitutionally protected prosecutorial function.

In its judgment, the High Court agreed, finding that the magistrate had improperly assumed jurisdiction over issues that should have been pursued through judicial review, not a private prosecution application. The court also noted that Atemba had not exhausted internal ODPP mechanisms for reviewing diversion decisions, nor had she demonstrated any legal basis for bypassing them.

Crucially, the High Court held that granting leave for a private prosecution in this context would amount to an abuse of court process and violate constitutional safeguards against double jeopardy, effectively affirming that the Diversion agreement remained the lawful resolution of the matter.

Submisions for Appeal were prepared by Natasha Chala and argued by Loice Osoro.

By setting aside the magistrate’s ruling, the High Court reaffirmed the ODPP’s authority to exercise prosecutorial discretion, including the use of diversion and other AJS-aligned alternatives aimed at promoting restorative justice.

The judgment is expected to strengthen the ODPP’s diversion framework and clarify the legal boundaries around private prosecutions, particularly in cases where alternative justice mechanisms have already been employed, officials said.