Employer denied the right to institute private prosecution proceedings

Private prosecution, provided for under the Office of the Director of Public Prosecution Act 2 of 2013 (the ODPP Act), allows private citizens to privately prosecute where the court is satisfied that there has been a failure by the bodies charged with prosecution powers to carry out their mandate. Employers who are frustrated by the prosecution process in Kenya can initiate private prosecution proceedings.

7 Jun 2021 3 min read Employment Law Alert Article

At a glance

  • Private prosecution allows employers in Kenya to initiate legal proceedings when the bodies responsible for prosecution fail to carry out their duties.
  • The case of BIDCO Africa Limited vs Director of Public Prosecutions highlighted the limitations of private prosecution. BIDCO's appeal to take over the prosecution of ex-employees was denied as the trial had already commenced.
  • Employers should exhaust public prosecution avenues before considering private prosecution and should understand that private prosecution is not applicable to ongoing cases but can be pursued through separate civil proceedings.

It is important for employers to understand when and how they can initiate such proceedings. This was especially highlighted in the matter of BIDCO Africa Limited vs Director of Public Prosecutions Criminal Appeal 73 of 2019, where BIDCO Africa Limited’s (BIDCO) appeal to initiate private proceedings was denied.

BIDCO’s ex-employees were charged with the offence of stealing under Criminal Case No. 5906 of 20166. BIDCO sought to take over the prosecution of the criminal case on 30 April 2018, as the trial had not commenced since the pleas were taken in 2016. This application was dismissed in September 2019.

BIDCO appealed against the dismissal, on the grounds that the Director of Public Prosecutions (the DPP) had failed to institute criminal charges against the ex-employees despite the fact that there was sufficient evidence to institute criminal charges and as a result BIDCO had suffered immeasurable financial loss.

Section 28 of the ODPP Act provides for private prosecution. The courts in Kenya have expounded on this section by formulating principles that have to be met before a private citizen can proceed with private prosecution. These principles were highlighted in Floriculture International Limited and others, High Court Misc. Civil Application No. 114 of 1997 as follows:

  1. the complainant must firstly exhaust the public machinery of prosecution before embarking on it himself i.e. affording the DPP a reasonable opportunity to commence/oppose the criminal process. In the matter of Otieno Clifford Richard Vs. Republic, High Court at Nairobi Misc. Civil Suit No. 720 of 2005 the application for private prosecution was denied, as the DPP had not issued a formal charge sheet;
  2. that the DPP has taken a decision on the report and declined to institute the criminal proceedings; or that he has been unreasonably silent;
  3. that the DPP’s failure or refusal to prosecute is culpable and is without good reason;
  4. that unless the suspect is prosecuted at the given point of time, there is a clear likelihood of a failure of public and private justice;
  5. that the private citizen has suffered exceptional and substantial injury or damage, and that he is not motivated by, malice, politics, or some ulterior considerations devoid of good faith; and
  6. that demonstrable grounds exist for believing that a grave social injustice is being allowed to persist and that private prosecution is an initiative to counter act the culpable refusal or failure to prosecute.

The DPP opposed the appeal by relying on the case of Rufus Ribblebarger vs Brian John Robbson (1959) which provided that private prosecution can only be allowed by the court if the private prosecutor can prove that that the private proceedings are necessary because the DPP does not wish to act on the complaint, and that they have declined to act or refused to take action, for culpable reasons.

The court took the position that the case commenced from the moment the accused took their pleas. Therefore, there was no denial or failure to act on the part of the DPP. The court further held that under the Constitution of Kenya, prosecutorial power is vested in the DPP and once the DPP has commenced prosecution, under Article 157(10) of the Constitution, the DPP cannot be directed in the exercise of its prosecutorial powers.

This case highlights all the tenets of private prosecution. Employers should note that despite the availability of the remedy, it can only be used to initiate proceedings where there has been refusal by the DPP to commence prosecution and not to take over proceedings that have already commenced.  If an employer is frustrated by the DPP in an ongoing criminal case, it should consider initiating separate civil proceedings against its former employee for the harm done.

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